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1 

2 

3 

#  : 

5 

6 

f^ 


RKVISED      KIDITIOxN. 

isoo. 


PACIFIC  COAST 

COLLECTION    LAWS 

•  ■  ^  -^    SL-MMAUY   OK  THE 

I'RniSri  (OLl-MW A,  COLORADO,  XEW 
-MEXICO    AXD     TEXAS. 


i.\('i.i-r)ix(i 


INSOLA'ENCY  LAWS 


ALSO    • 


THE  jURISDICTIOX   OF   U.  S.  COUKTS 


WITH 


HY 


J-    H.    JEI.LETT, 

Attorxj;y  at  Law. 


J^A-N    FRAXCISKC 

Win.  c.  Kroun,  ITintPr.  .yo  ,^„„s„„ie  .< 


treet. 


PREFACE. 


4 


"Pacific  Coast  Collection  Laws."  A  revised  edition 
for  1890.  has  been  rendered  necessary,  owing  to  the  nian>- 
important  changes  that  have  been  made  in  onr  statute  laws 
since  the  last  Issue  of  the  work 

The  list  of  attorneys  contained  therein  has  been  carefull\' 
revised. 

The   following   practicing  attorneys  kindly   assisted    in   the 
undertaking. 

DoLPH,  Bi-.ij.ixc'.iCK,  Mai.i.okv  ^:  vSimon.     -     -     Portland,  Or. 
Marshall  ^K:  Rovlk,       -----    Salt  Lake  City,  Utah. 

Pkterson  &  Pi:.\.\];FATiiKK,       -     -     -    vSeattle,  Wa.shington. 
McCuTCHKOX  &  McIntirk,      -     -     -  Ikkna,  Montana. 

C.  N.  PoTTKR,       --------    Chexennc,  Wyoming. 

Jo.N'AS  W.  Brown,       - Boise  Cit}-,  Idaho, 

i\L  W.  T.  Drake,  of  Drake,  Jackson  .S:  Helmcken, 

Victoria,  B.  C. 
Hernuon  &  Hawkins,      -------    Prescotl,  A.  T. 

A.  A.  Jones,  --------   Las  \'egas.  New  Mexico. 

R.  D.  Thompson,        --------    Deiuer,  Colorado. 

Shook  «S:  \'andI':r  IIoi;vi:n.     -     -     -      San  Antonio,  Texas. 
J.  \V.  Whitcher,       ------      Virginia  City,  Nevada. 

J.   H.  Jl-LIJ'.TT. 
S(V/  Fraz/nsco,   .l/^nV.   rSga. 


.1^ 


4 


i;  11  tu It'll  iiC'cnicliUK  to  Act  of  Cdiikioss  in  tlio  yuar  Iv.n)  hy 

,1.  H.  .IKI.I.KTT. 

In  tlu'  olUcf  of  tlic  I.ilinirian  of  ('onijivss  at  Wasliinuton.  I>.  C. 


CONTENTS. 


Part  I. 

PACIFIC  COAST  ATTORNEYS  AND  A  NOTARY 
PUBLIC  FOR  SAN  FRANCISCO. 

Part  IJ. 
JURISDICTION  OF  U.  S.  COURTS. 

I'.VHK 

CirAPi'EB  I.    Courts  ami  tlieir  Jurisdiction ] 


Part  III. 
CALIFORNIA. 

('itAPTER  I.  Courts  and  Their  Jurisdiction ; '■> 

II.  Terms  of  Courts,  When  and  Wiiere  Held li 

III.  Place  of  Trial  of  Civil  Actions !•_> 

ly.  Limitation  of  Civil  Actions !•"> 

V.  Parlies  to  Suits — Commencement  of  Actions 1'.' 

Vi.  Form  of  Civil  Actions — Pleadings •_'•'! 

VII.  Attachments -J^ 

\'1II.  Claim  and  Delivery  of  Personal  Property ;>.> 

IX.  Arrest  and  Bail .'?(> 

X .  Injmict  ions ;>> 

XI.  Judgments  and  Judgment  Liens .">.> 

XII.  Execution — Sale  and  Redemption 4f'' 

XIII.  Proceedings  Supplementary  to  Kxecution 'yA 

Xl\'.  Costs 5o 

XV.  Appeals  in  Civil  .Vctions W 

XVL  New  Trials til 

X\"II.  Estates  of  Deceased  Persons <)2 


vi 


XVIll. 
XIX. 
XX. 
XXI. 
XXll. 
XXIII. 
XXIV. 
XXV. 
XXVI. 
XXVI  I. 
XXVIII. 
XXIX. 
XXX. 
XXXI. 
XXXII. 
XXXIII. 
XXXIV. 
XXXV. 
XXXVI. 
XXXVII. 
XXXVIII. 
XXXIX. 
XL. 
XLI. 
XLII. 
XLllI. 
XLIV. 
XLV. 


CONTKXTS. 

I'A(.K 
,,  ,  7(1 

Desceut.'i 

Liens  of  Mechanics  and  Others  upon  Real  Property TA 

Liens  for  Salaries  and  Wages '•' 

.Vrbitrations ; '  " 

Homesteads 

S4 
Corporal  ions 

yUAe  of  Taking  Testimony  of  Witnesses ^i* 

Judicial  Records,  How  Proval ^^ 

Acknowledgments '^'' 

Partnerships - 

Married  Women '^'' 

Minors '' 

Stoppage  in  Transit •'" 

Bills  of  Lading '■)'' 

Interest *'*^ 

Common  ('arriei"s 100 

Mortgages  of  Personal  Property 1^1 

Pledge l*^'^ 

Guaranty  and  Suretyship I""! 

Sale 1*'" 

Contracts t ^^^ 

Negotiable  Instruments I "'' 

Principal  and  Agent 1  '7 

Fraudulent  Instruments  and  Transfers H^ 

Assignments  for  the  Benefit  of  Creditors 1 1 9 

Commission  Merchants,  etc 1--I 

Insolvency '-•1 

Legal  Holidays 1"><> 


^R 


P.\RT    IV. 


NEVADA. 


Chapter  I.    Courts — Jurisdiction  and  Terms  of  Courts 1")1 

II.  Time  Allowed  to  Answer — Service  by  Publication — Place  of 

Trial loi} 

III.  Limitation  of  Actions lo3 

IV.  Attachments l.'itJ 

V.    Arrests  in  Civil  ,\ctions |.')»t 

VI.    Judgments  and  Judgment  Liens ]'>7 

Vn.    Exef'utions,  Exemi)ti<ms,  Sale  and  Redemption loS 

VIII.    Proceedings  Supplementary  to  Execution ItlO 

IX.    Security  for  Costs lt>(» 

X.    Appeals Kil 

XL    Kstates  of  Deceased  i'ersons 1(12 


CfiNTKNTS 


Vll 


I'Al.l. 

XII.   lli)iiit'sU'iuls ](;;> 

XIII.    Of  Witnesses  imd  Depositioii.s 104 

XI\'.    .IiKJiciiil  lleconis — llow  I'roveil 1(17 

X\'.    .\('kiiowU'(lj{muiils I('»S 

XVI.    .Mlidiivits,  I'.efore  Wlioiii  to  be  Tiikoii Itiil 

X\'II.     Mmlteil   I'aitnersiiips ICK 

XVIII.    .Married  Women 170 

XIX.    Corponitions 170 

XX.    Cliiittel  Mortgages 171 

XXI.    Interest  and  I'snry 171 

XXII.    Promissory  Xote.s and  Kills  of  Exchange 171 

XX II  I.    Mortgages 17li 

XXIV.    Joint  Debtors— Release  of 172 

XX\'.    Insolvent  Debtors 17.'} 


Part  V. 


OREGON. 


i'UAi'TKK  I.  Courts  and  Their  Jiirisdietion .  177 

II.  Tennsof  Courts— When  and  Where  ileld 178 

III.  ( 'onnneneenicn  t  of  Suits 1 80 

IV.  I'laceof  Trial  of  Civil  Actions 181 

V.  Limitation  of  Actions 181 

VI.  .Vttachments 18o 

VII.  Arrest  in  Civil  Actions 183 

VIII.  .Judgment  and  .Judgment  Liens 185 

IX.  Kxccnt ions,  K.xemptions,  Sale  and  Redemption 185 

X.  I'roeeedings  Supplementary  to  Kxecution 186 

XI.  Security  for  Costs 187 

XII.  Appeals 187 

XIII.  Estates  of  I )ecexsed  I'ei'sons 188 

XIV.  Descent  of  Real  Property 1»9 

-W.  Descent  of  Personal  Property 190 

.\  VI.  Homesteads  and  Dower 191 

XVII.  Depositions 191 

XVIII.  .Judicial  Records 19.3 

.\IX.  .Vcknowledgments 19;{ 

.\X.  Limited  Partnerships 194 

XXI.  Married  Women 195 

XXII.  Corporations 190 

XXIII.  Chattel  Mortgages 196 

X  X I  \'.  Interest  and  Isury 1 97 

X  .\  \'.  .Assignments  for  Heneti f  of  (  reditors 1 97 


viii 


Contents. 


Paut  VI. 
IDAHO. 

V.M.K 

■C'ltAPTEK  I.    Courts.  Tlielr  Jiuisdiition  and  Terim -•^'•^ 

II.  Liniitution  of  Actions -^•' 

III.  Parties  to  (,'ivil  Actions 210 

IV.  I'lacesof  Trial  of  Civil  Actions 211 

V.    Coninioncement  of  Civil  .Actions 214 

VI.  Pieudings  in  Civil  .Actions "-1. 

VII.  Attachments "-17 

VIII.    Claim  and  Delivery 21S 

l.X.    K.xeni|)tions  from  Kxecution '-I'.* 

X.  Kedeiuption,  etc ''''l 

Xi.    Appeals '2.-2-1 

Xll.    Liens 22ti 

XIII.  Estates  of  Deceased  Persons 22.S 

XIV.  Succession  ■-.'?.'< 

XV.  Homesteads "-liT 

X \'  I.    ( 'orporations 'ilih 

XVII.  Acknowledgments 2:?!» 

XVIIl.  Depositions 241 

XIX.  .Judicial  Records 242 

XX.  Special  Partnership 24;> 

XX!.  Chattel  Mortgages 244 

XXII.  Intere,st 24") 

XXIII.  Insolvency 24") 

Paht  VIT. 
WYOMING. 

i'liAi'TEK  I.    Courts  and  Their  .Jurisdiction 2.")1 

II.    Terms  of  Courts — When  and  Where  Held 2")2 

III.  Comnjenceinent  of  .\ctions,  Time  to  .\nswer,  Place  f)f  Trial...  2")2 

IV.  Linntation  of  Actions 2")H 

\'.    Attachments 2.')4 

\'l.    Arrest  in  Civil  Actions 2")') 

VII,  .Judgment  Liens 2")7 

VIII.  K.xecuf ions,  Sale,  Redemption  and  Exemptions 2")S 

IX.    Proceedings  in  Aid  of  E.xecutions 2')'.) 

X.    Security  for  (Josts 2")H 

XI.  Appeals 2.")',> 

XII.    Estates  of  Deceased  Persons 2t)() 

^  XIII.  I  )epositions 2()() 

XIV.  .Judicial  Records 2<)1 

XV.  Acknowledgments 2t»l 

XVI.  Limited  Partnership 2<):i 


CJoNTKXTS.  ix 

V.Mih 

XVII.    Nfiirried  Women 'M'.l 

XVI 11.    CluUtcl  McrtKiiges '2»i4 

XIX.    Interest  ami  I'siiry '2M 

XX.    As^signinents tJlU 


Paht  VIII. 
MONTANA. 

(Jhaptkr  I.    Courts — Their  Jurisdiilioii 

II.    Time  Allowed  Defemlant  to  .Viiswer— I  lace  of  Trial  of  Civil 
.\ctions 

III.  Limitations  of  Actions 

IV.  Attachments -.\rrests  in  Civil  Cases.. 

V.    Judgment  Liens — Kxccutions,  Kxeinpti'nis,  Sale  and  Redemp- 
tion  

VI.    Proceedings  Supplementary  to  Exe<  \itions 

VII.    Security  for  Costs — Appeals 

Vlll.     Estates  of  Decease<i  Persons 

IX.    Depositions— Judicial  Records— .Xcknowledgments 

X.    Limited  Partnerships 

XI.    Married  Women 

XI I.    Corporations— Chattel  Mortgages— Interest 

XIII.    I  nsol  vencv 


•J»)7 

2G7 
268 
209 

•.^70 
272 
272 
272 
27H 
274 
27.') 
27") 
27(i 


Part  IX. 
ARIZONA. 

CitAi'TKlt  I.    Courts  ami  Their  Jurisdiction 2( . 

II.    Terms  of  Courts-  When  and  Where  Held 279 

1.1 1 .    ( 'ommencemeut  of  Suits -'^" 

IV.    Placeof  Trial  of  Civil  Actions '■^•'^1 

V.    liimitation  of  .\ctions !^84 

VI.    Attachments -^^' 

VII.    ( iaruishments -''^^ 

Vlll.    Judgment  Liens '■^^''* 

IX.    Executions,  Exemptions,  Sale  and  Redemption 21X) 

X.    Proceedings  Siipilemcntary  to  Execution 21)1 

XI.    Estates  of  Deceaseit  Persons -'«•! 

XII.    Aflidavits  and  Depositions '•^'•^'•^ 

XIII.     Acknowledgments -'^•' 

Xl\'.    Married  Wonu-n -'"_; 

XV.    Chattel  Mortgages -^^ 

XVI.    Interest -''" 

XVll.    Bills  of  Exchange " -•*''* 

XVI! I.    Insolvency 2W 

XlX.    Assignments ••'^"^ 


Contents. 


Part  X. 


CiiAi'Ticr  1. 
11. 

iir. 

IV. 

V. 

VI. 

VII. 

Vlli. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 

XVill. 

XIX. 

XX. 

XXI. 

XXII. 


UTAH. 

I'.ViiB 

The  Cuiirt.s  and  Tlieir  JuristUctioii •^'^'1 

The  Terms  of  Courts  ami  Places  of  Holding  Same ;'>•>•-' 

Connueneement  of  Suits  and  Time  Allowed  Defendant  to 

Plead 'f-^ 

Limitations  of  Actions ■'"•' 

Attachments •'•^•' 

Arrests  in  Civil  Actions •'^'^"^ 

Judgments  and  Judgment  Liens •^"•' 

Fxecutiims,  Exemptions,  Sale  and  Redemption •'5<'<i 

Proceedings  in  Aid  of  Executions IWM 

Security  for  Costs •!<>•' 

Appeals ■'"■' 

Estates  of  Decea.sed  Persons •>!  1 

Homesteads o  1 2 

Depositions •>  1  - 

Judicial  Records — How  Proven ;>14 

.Aclinowledgments •>  1  •• 

Partnerships •{  1 " 

Married  Women -5 1 " 

Corporations •>  1  >"^ 

Chattel  Mortgages -JIS 

Interest  and  Tsury 'VIO 

Insolvency oiiu 


Part  XI. 
BRITISH  COLUMBIA. 


CiiAPTEUI.    Courts — Their  Jurisdiction  and  Terms 321 

II.    Commencement  of  Suits ;52'J 

III,    Limitation  of  Actions '.iSA 

iV.    Attachments — .\rrest  in  Civil  .Vctions '.Vl'A 

V.    Judgments  and  Judgment  Liens ;!24 

VL    Executions,  Exemptions,  Redemption.  Sale ;}24 

VIl.    Security  for  Costs ',',2'} 

Vlli.    Appeals ;J2."> 

IX.    Estates  of  Deceased  Persons ;i'2'i 

X .    Homesteads ;;'jt j 

XI.    Dcposi*ions ;{2(i 

XII.    Judicial  Records— .Acknowledgments ;{27 

Xlll.    Limited  Partnerships,  etc ;!27 


Contents.  xi 

I'A(ii-; 

XIV.    Miirried  WonitMi •'!-7 

X  V.    Morljjages •>-'H 

XVI.    Interest  and  I'sury ^VJH 

XVII.     Ivunil  Laws,  also  Liens ;>'29 

X  \'  11 1 .    Mnnieipality  Laws ^>•lO 

XIX.    Ships  and  Shipping •>'>0 

XX.     1  nsol veney ■'•'0 

XXI.    Mines,  otf •^■">^ 


Part   XIT. 


COLORADO 


.s:?.s 


Part   XIII. 


NEW  MEXICO 


.i.K 


Part   XIV. 


TEXAS. 


:54l 


Part   XV. 


WASHINGTON. 


CiiAPTKU  I.    Courts  and  their  Jiirisiliction •'•^•'J 

II.    Terms  of  Coiuts— When  and  Where  llehi 1^47 

III.  Coninieneement  of  Suits— Time  Allowed  to  Answer ;?48 

IV.  Place  of  Trial  of  Civil  Actions -i-^'J 

V.    Limitation  of  .Vctions •'•_>'* 

\'L    Attachments  and  (iarnishmen'    ■'•■^^ 

VIL    Arrest  in  Civil  Actions •|-_''_' 

VIII.    Judgmcntsand  .JndKmont  Leins •'•"J 

IX.     Liens  of  Mechanics  and  others •''_>*> 

X.    Fxecntions,  K.xeiuptious,  Sales  and  Redemptions :l")7 

XI.    Proceedings  Supplementary  to  Kxecution •'>•>! 

XII.    Heplevin '"'^ 


xu 


XIII. 

XIV 

XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 

XXIIl. 

XXIV. 

XXV. 

XXVI. 

XXVII. 

XXVIII. 


»  Contents. 

.  .  P.V(!K 

,     ,,    , 302 

Security  lor  Losts .^^..^ 

Appeals  iind  Writs  of  Error \^^^^^ 

PMates  of  Deceased  Persons ;^^|j. 

Wills : 'J 

,  00/ 

Homesteails 

.  .  Ml 

Depositions 

Judicial  Kecord,s-How  Proved '  ''^ 

Conveyances  and  Acknowledgments •    ' 

Limited  Partnerships '' 

Man.cu  Persons 

;5/4 

Corporations 

Chattel  Mortgages '  '^ 

,  ^  i/ 1 

Interest 

Bills  of  Exchange  and  Promissory  Notes yj 

Insolvent  Laws " '' 

Aliens; 


PART  I. 


PACIFIC  CO^^ST  ATTORNEYS  AND  A  NOTARY 
PUBLIC  FOR  SAN  FRANCISCO. 


The  Following  are  Recommended  as  Reliable. 


CALIFORNIA. 


COUNTY. 


KESIDENCK 


NAME. 


Alameda Oakland |J.  C.  Phiid-cett 


Livermore 
Pleo.santon 


Amador Jackson . 

Butte Oroville 


Chico 


(Jalaveras.  . .  .iVallecito 


Colu.sa. 


Contra  Costa 


Colusa  .  .  . 
Willows .  . 
Martinez. . 


Geo.  W.  Tjangan. 
J.  K.  Palmer. 
Eo'an  &  Rust. 
Gray  &  Sexton. 


Camper  &  (^)star, 

Collectors. 


.  B.  H.  Lewis. 
.  H.  M.  Albery, 
B.  F.  Geis. 


W.  S.  Tinning. 


XJV 


Attorneys. 


CALIFORNIA—  Continued. 


[Part  1 


COUNTY. 


ItKSIDKNC'K. 


NAMK. 


Contra  Costa.  Autioch A.  C.  Hartley. 


Del  Norte . .  . 


Crescent  Citv.jW.  A.  Han)ilton. 


El  Dorado.  .  .  Placerville.  .  Jlr\vin  k  lr\Yin. 


Fresno 


Humboldt 


Fresno 
Selnia. 


Church  &  Corey 
W.  B.  Good. 


Kingsburg.  .  .'W.  B.  Coocl. 
Eureka Fred  W.  Bell, 

I  Collector. 

Hyde.sville...'j.  W.  Maxwell, 

Colk'ctdiiinii  (icniTrtl  .\sc!il. 

Inyo Independence.  A.  H.  Conklin. 


Kern 

Lake 

Ijassen 

Los  Anyeles. 

Marin 

Marijiosa  .  .  .  . 
Mendocino . .  . 
Merced 


BakersfielLl...jC.  C.  CowgiJl; 

Lakeport Woods  Crawford. 

Susan ville  .  .  .'E.  K.  Do(l<je. 

Los  Angeles  .  Finlayson  iS:  Finlavson 

j 
San  Rafael...  :F.  ^F.  Angeloti. 

Mariposa  .  .  .  .'L  F.  Jones. 

Lkiah T.  L  Carother.s. 

^Terce<l J.  \V.  Kno.x. 


Part  1] 


Attorneys. 


XV 


CALIFORNIA—  Continued: 


COl'NTY. 


RKSIDKXCE. 


NAMK. 


Modoc  .... 
Monterey . . 
Napa 


Nevada. .  .  . 

Placer ! Auburn.  . . 

Plumas ;Quincy 

I 
Sacramento  .  .  Sacramento 


1 
Alturas Jenks  &  Claflin 

1 

Salinas 'N.  A.  Dorn  k 

i  W.  M.  R.  Parker. 

Xapa i  Mount  &  Boke, 

i 

St.  Helena...  I  J.  D.  Bocrgs. 
Nevada  City-'F.  Power. 

C.  C.  Ames, 


CoUector*. 


Collector. 

C.  E.  McLaughlin. 
J.  C.  Tubbs. 


San  Benito..  .'Hollister !W.  G.  L^ ^^^^^^. ,,^„, 

San  Bern'dino|San  Bern'dino|F.  B.  Daley. 

Riverside.  .  .  .iThos.  B.  Stephenson. 


San  Diego.  .  .'San  Diego.  . 

San  Joaquin. .  Stockton. .  .  . 

S.  Luis  Obispo  S.  Luis  Obispo 

!San  Miguel  .  . 

San  Mateo. .  .jRedwood  City 

I 

! 

Santa  Barbara  Santa  Barbara 


Collector. 


J.  J.  Henderson. 
Geo.  S.  Price, 
E.  P.  Unangst. 
A.  C.  Swift. 
Geo.  C.  Ross. 

Geo.   W.    Russell,  collector. 


XVI 


AmjHNEYS.  [Part 

CALIFORNIA—  Continued. 


COUNTY. 


Santa  Clara 


•Santa  Cruz. 


RKSIDUNCE. 


San  Jose. 
Gilroy. .  . 
Mayfield. 


NAME. 


Santa  Cruz. 


Watsonvilh 


Shasta iReddinix 

Sierra JJownieville.  . 

i 

Sierra  Valley 


Siskiyou. 


Yreka  .  . 


Solano jVacaville  .  .  . 

Vallejo 

Sonoma Santa   Rosa. 


Healdsburi^ 
Stanislaus ....  Modesto.  .  . 
Sutter 'Yuba  City. 

Tehama feed  T^Iuft'.. 

I 

Trinity iWeavfrvilh- 


H.  V.  Dusini--. 
J.  C.  Zuck. 
Joseph  S.  Walli,^ 
C.  T.  Sutphen. 
Julius  Lee. 
F.  P.  Priinn). 
S.  R.  J)avidsoii. 
George  Wood. 
J.  S.  Reard. 
Raleii,di  Rar(^ar. 
W.  S.  Crocker. 
0.  H.  Hoa.i.-.     . 
J.  W.  Rose. 
C.  W.  Eastin. 
W.  T.  Phipp.s. 

Xaglo  .S:    X;|<rJo. 

J.  W.  Rartlett. 


i 


i^art  1]  .  Attounevs. 

C  ALIFORNI  A— Continuod. 


XVll 


COUNTY. 


REHIDKNCE. 


Tulare Visalia 

iHanford 


NAME. 


VV.  B.  Wallace. 
Micklo  &  Irwin. 
F.  W.  Street. 


Tuolumne..  .  .iSonora  .... 

Ventura i  Ventura Orestes  Orr. 

Yolo.  . Woodland.. .  .'c.  S.  P>ost. 

Yuba  . |Mary.sville  .  .  . ,  Wm.  (t.  Murjjliy. 

NEVADA. 


COUNTY. 


RESIDEXCIC. 


NAME. 


Elko jElko Tall)ot  &  Farrinoton. 

i  i 

Esmeralda  .  .  .iJlawthorne  .  .  A.  W.  Crocker. 


Eureka 


Eureka 


A.  E.  Cheney 


Hiunboldt  .  .  .iWinnemucca  .JM.  S.  Ijonnitit-ld. 


Lander 

Battle  Mt .  .  . 

James  F.  Dennis. 

Lyon 

* 

Day  ton 

John  Lathrop. 

Ormsby 

Car.son  City.  . 

Treninor  Coffin. 

Storey 

Viririuia  City. 

J.  W.  Whitcher. 

Waslioe 

Reno 

C.  W.  Jones, 

(■ollcntor. 

White  Pine.. 

Ely 

F.  X.  Murpiiy. 

XVIU 


Attorneys. 
OREGON. 


[Part  1 


COUNTY. 

RESIDENCE. 

3aker  CUty  .  .  1 

NAME. 

Baker.......  1 

Hyde  Johns  &  Olmsted. 

1. 
Beiitoii Corvallis - 

F.  M.  Johnson. 

Coos ^ 

Marsh  field  .  .  . 

Henrv  Sengstackou, 

'    Nolivry  I'liblio  tiiid  (Dllcclor. 

Clatsop 

A.storia 

J.  Q.  A.  Bowlby. 

Currv 

Denmark  .  .  .  .  i 

J.  H.  TTpton, 

Also Notiiiy  I'ulilii'. 

Douglas 

Rosebiirg .... 

1 

Hamilton  k  Hamilton. 

Jackson 

Jacksonville.  . 

P.  P.  Prim. 

Jo.sephine .... 

(xrants  Pass.  . 

S.  IT.  Mitchell. 

Klamath 

Linkville  . .  .  . 

Cogswell  &  Hale. 

Lake 

Lakeview.  .  .  . 

Cogswell  &  Ross. 

Lane 

Eugene  City. 

George  B.  Dorris. 

Linn 

Albany 

'Hewitt,  Bryants  Irvine 

Marion..  .... 

Salem 

P.  H.  D'Arey. 

Multnomah  .  . 

Portland, .  .  . 

:Doli)h,  Bellinger, 

i             Mallorv  &  Simon 

Polk 

Independence 

.IA.  M.  Hurley. 

Umatilla. .  .  . 

Pendleton. .  . 

.  jBailey  ct  Balleray. 

Union 

.  La  Grande. . 

i 
.Baker  &  Baker. 

Part   I] 


COUNTY. 


Attohnkys. 
OREGON— Continued. 

RESIDENCK.  NAMK. 


Wasco The   Dalles. .  .  W.  S.  Myers. 

WasliinL,'U)ii.  .  Hillsboro' ....  Tho.s.  H.  Toiio-iie. 

i 
Yamhill JMcMiniiville..  L.  Loughary. 


UTAH  TERRITORY. 


COUNTY. 


RKSIDEKCE. 


NAME. 


Salt  Lake. .  ,  .  .Salt  Lake  City;  Marshall  &  Roylc. 


WASHINGTON. 


COUNTY. 


KKSIDKXCK. 


NAMK. 


XI. \ 


Chehalis Monte.sano.  .  .  George  J.  Moody. 

!  i 

Clarke Vancouver.  .  .  W.  Byron   Daniels. 

i 
Colmnhia ....  Dayton E.  H.  Fox. 

Cowlitz Kelso .1.  F.  Van  Name. 

GarHeld  .     ...  Pomeroy jS.  G.  Cosgrove. 

Jefferson P't  Townsend.  Kays  &  Plundey. 

King Seattle Peterson  &  Pennetatlier, 

Kittitas 'Ellensbnrg.  .  .  M.  Gilliam. 

Lewis iChehalis Daniel  C.  Millett. 


I 


XX 


Attoknkys. 


WASHINGTON—  Continued. 


\  Villi  I 


COUNTY. 

RESIDENCE. 

NAME. 



Lewis 

■: 

Ccntralia  .... 

GeorL^e  E  Rhodes. 

Lincoln 

Spraij^uc  .  .    .  . 

T.  A.  Wickham. 

Piorco 

lacoma 

Garretson.  Tarkcr  &  Roslin«. 

Spokane  Falls 

J.  Kennedy  Stout. 

Thurston  .... 

Olympia 

Allen  cV  Ayer. 

Walla  Walla  . 

Walla  Walla  . 

D.  J.  Crowley. 

Whatcom .... 

Whatcom  .... 

James  P.  de  Matto.s. 

Whitman .... 

Colfax 

Sullivan,  Chadwick  & 

FuUerton. 

Yakima 

North  Yakima 

Edward  Whitson. 

MONTANA. 


COUNTY. 


HKSn)KN(  K. 


Deer  Lodixe . . 


NAME. 


Wm.  K.  Sloan  &  Co. 


Lewis&Clarke|  Helena ;McCutcheon  &  McLitire. 

I 
Madison Vir<:jinia  City.jTheo.  Muffley. 

Silver  Bow  .  .Butte  City. .  .Ciia.s.  ().  Donnell. 


I'lllt  1 

A'lTOUNEYS. 

X.\l 

IDAHO  TERRITORY. 

COUNTY. 

re8IDENc;k. 

NAME. 

Ada 

Boise  Citv  .  .  . 

Jonas  W.  Brown. 

Alturas 

Mt.  Home .  .  . 

StuU  &  McCarty. 

Rocky  Bar . .  . 

Stull  &  McCarty. 

Nez  Forces  .  . 

Lewiston  .... 

Jasper  Rand. 

ARIZONA  TERRITORY. 


(•OINTV, 


RESIDKN'CE. 


Gila .Globe 


NAME. 


J.  D.  McCabe. 


Marico|)a Phcenix |H.  N.  Alexander. 

1  ! 

Pima Tucson G.  W.  Ticher  ... 

Pinal Florence ;  W.  H.  Benson. 

Yavapai Flacjstaff Ross  k  Van  Horn. 

'       ^  i 

Prescott Herndon&  Hawkins. 

Yuma Yuma O.  F.  Townsend. 


WYOMING  TERRITORY. 


('OIWTY. 

RESIDEN<'E. 

Cheyenne .... 

NAME. 

Ijaramie 

C.  N.  Potter. 

XXll 


Attohnkvs, 
BRITISH  COLUMBIA. 


[Part   1 


rOHNTV. 


RKSIDKNOK. 


Victoria 'Victoria 


NAME. 


Drake,  Jack.soii  k 

Hcliiickun. 


COLORADO. 


COUNTY. 


RKSIUK.VrK. 


Arapalioe. .  .  .  Denver. .  .  . 

I 
Lake iLeadville  .  . 


NAMK. 


R.  D.  Thompson. 
Wni.  H.  Nasli. 


NEW  MEXICO. 

COUNTY. 

RESIDENCE. 

NAME. 

Bernalillo. .  .  . 

Albuquer(|ue. 

Bernard  S.  Kodey. 

Dona  Ana .  .  . 

huty  Cruce.s. .  . 

S.  B.  Newconib, 

Grant 

8an  Mi<(uel .  . 

Silver  City..  . 
La;?  Vegas  .  .  . 

Mr.s  0.  S.  Warren. 

Ccilleiior. 

A.  A.  Jones. 

Socorro 

i 

Socorro 

Isaac  S.  Tifianv. 

ALASKA. 


COUNTY. 


RESIDENCE. 


NAME. 


Juneau JDelaney  k  (ininel. 

TEXAS. 


COUNTY. 


RESIDEXlK. 


NAMK 


Bexar San  Antonio  .Shook  k  Ditmar. 


GEORGE  T.  KNOX, 

NOTKRY      PUBLIC. 

444  California  Street, 

SAN  KKANlISCU. 

Also  Commissioner  of  Deeds  Jor  all  the  Stales 
and  Territories. 


PART  II. 


Jurisdiction  of  United  States  Courts. 


CHAPTER  I. 


CIRCUIT  COURTS. 

rmU'r  Act  of  US,S7. 

The  Circuit  Court  of  the  United  States  shall  have  orioinal 
cognizance,  concurrent  with  the  Courts  of  the  several  States,  of 
all  suits  of  a  civil  nature,  at  connnon  law  or  in  equity,  where 
the  matter  in  dispute  exceeds,  exclusive  of  interest  and  costs, 
the  sum  or  value  of  two  thousand  dollars,  and  arisino-  under 
che  Con,'^:titution  or  laws  of  the  United  States,  or  treaties  maile, 
or  which  shji.ll  be  made,  under  their  authority;  or  in  which 
controversy  the  United  States  are  plaintiffs  or  petitioners;  or 
in  which  there  shall  be  a  controversy  between  citizens  of  dif- 
ferent States,  in  which  the  matter  in  dispute  exceeds,  exclusive 
of  interest  ami  costs,  the  sum  or  value  aforesaid;  or  a  contro- 
versy between  citizens  ( *^'  the  same  State,  claiming  lands 
under  gra'\ts  of  different  States;  or  a  controversy  between 
citizens  of  a  State  and  foreign  States,  citizens  or  subjects,  in 
which  the  matter  in  dispute  exceeds,  exclusive  of  interests  and 
costs,  the  sum  or  value  aforesaid;  and  shall  have  exclusive  cog- 
nizance of  all  crimes  and  offenses  cognizable  under  the  author- 
ity of  the  United  States,  except  as  otherwise  provided  by  law, 
and  concurrent  jurisdiction  with  the  District  Courts  of  the 
crimes  and  offenses,  cognizable  by  them.  But  no  person  shall 
lie  arrested  ir:  one  district  for  trial  in  another,  in  any  civil 
action  before  a  Circuit  or  District  Court;  and  no  civil  suit  shall 


': 


% 


United  States  Courts. 


[Part  2 


be  brought  before  either  of  said  Cour  5  against  any  person  by 
any  original  process  of  proceeding  in  any  other  district  than 
that  whereof  he  is  an  inhabitant;  but  where  the  jurisdiction  is 
founded  only  on  the  fact  that  the  action  is  between  citizens  of 
diiferent  States,  suit  shall  be  brought  only  in  the  district  of 
the  residence  of  either  the  plaintiff  or  the  defendant;  nor  shall 
any  Circuit  or  District  Court  have  cognizance  of  any  suit  ex- 
cept upon  foreign  bills  of  exchange,  to  recover  the  contents  of 
any  promissory  note  or  other  chose  in  action  in  favor  of  any 
assignee,  or  of  any  subsequent  holder  if  such  instrument  be 
payable  to  bearer  and  be  not  made  by  any  corporation,  un- 
less such  suit  mighi,  have  been  prosecuted  in  such  Court  to 
recover  the  said  contents  if  no  assignment  or  transfer  had  been 
made;  and  the  Circuit  Courts  shall  also  have  appellate  juris- 
diction from  the  District  Coui-ts,  under  the  regulations  and 
restrictions  prescribed  by  law. 


Removal  of  Causes  from  State  Courts. 


That  any  suit  of  a  civil  nature,  at  aw  or  in  Cijuity,  arising 
under  the  Constitution  or  laws  of  the  United  States,  or  treaties 
made,  or  which  shall  be  made,  under  their  authority,  of  which 
the  Circuit  Courts  of  the  United  States  are  given  original 
jurisdiction,  as  above,  which  may  now  be  pending,  or  which 
maj'  hereafter  be  brought,  in  any  State  Court,  may  be  removed 
1)}'  the  defendant  or  defendants  therein  to  the  Circuit  Court  of 
the  United  States,  for  tht,'  proper  district.  Any  other  suit  of  a 
civil  nature,  at  law  or  in  e(|uity,  of  which  the  Circuit  Courts 
of  the  United  States  arc  given  jurisdiction,  as  above,  and  which 
are  now  pending,  or  which  may  hereafter  be  brought  in  any 
State  Court,  may  be  removed  into  the  Circuit  Court  of  the 
United  States,  for  the  proper  district,  l)y  the  defendant  or  de- 
fen<lants  tlierein  being  non-residents  of  that  State;  and  when 
in  any  suit  mentioned  herein  there  shall  bi' a  CDntroversy  which 
is  wholly  between  citizens  of  ditferent  States,  and  which  can 
bo  fully  determined  as  between  them,  then  either  one  or  more 
of  the  defendants  actually  interested  in  such  controversy  may 


|{; 


Cliap.  1] 


United  States  Courts. 


3 


remove  said  suit  into  the  Circuit  Court  of  the  United  States 
for  the  proper  district. 

And  where  a  suit  is  now  pending,  or  may  be  hereafter 
brouglit,  in  anj'  State  Court,  in  which  there  is  a  controversy 
between  a  citizen  of  the  State  in  which  the  suit  is  brouo-ht  and 
a  citizen  of  another  State,  any  defendant,  being  such  citizen  of 
another  State,  may  remove  such  suit  into  the  Circuit  Court  of 
the  United  States  for  the  proper  district,  at  any  time  before 
the  trial  thereof,  when  it  shall  be  made  to  appear  to  said  Cir- 
cuit Court  that  from  prejudice  or  local  influence  he  will  not  be 
able  to  obtain  justice  in  such  State  Court,  or  in  any  other 
State  Couri,  to  which  the  said  defendant  may,  under  the  laws 
of  the  State,  have  the  right,  on  account  of  such  prejudice  oi- 
local  influence,  to  remove  said  cause;  provided,  that  if  it  fur- 
ther appear  that  said  suit  can  be  fully  and  justly  determined 
as  to  the  other  defendants  in  the  State  Court,  without  being 
affected  by  such  prejudice  or  local  influence,  and  that  no  party 
to  the  suit  will  be  prejudiced  by  a  separation  of  the  parties, 
said  Circuit  Court  may  direct  the  suit  to  be  remanded,  so  far 
as  relates  to  such  other  defendants,  to  the  State  Court,  to  be 
proceeded  with  therein. 

At  any  time  before  the  trial  of  anv  suit  whicli  is  now 
pending  in  any  Circuit  Court,  or  may  hereafter  be  entered 
therein,  and  which  has  been  removed  to  said  Court  from  a 
State  Court  on  the  aflidavit  of  any  party  plaintifl  that  he  had 
reason  to  believe  and  did  believe  that,  from  prejudice  or  local 
influence,  he  was  unable  to  obtain  justice  in  said  State  Court, 
the  Circuit  Court  shall,  on  application  of  the  other  party,  ex- 
amine into  the  truth  of  said  aflidavit  and  the  grounds  thereof, 
and,  unless  it  shall  appear  to  the  satisfaction  of  said  Court  that 
said  party  will  not  be  able  to  obtain  justice  in  such  State 
Court,  it  shall  cause  the  same  to  be  remanded  thereto 

Whenever  any  cause  shall  be  removed  from  any  State 
Court  into  any  Circuit  Court  of  the  United  States,  and  the 
Circuit  Court  shall  decide  that  the  cause  was  improperly  re- 
moved, and  order  the  same  to  be  remanded  to  the  State  Court 
from  whence  it  came,  such  remand  shall  be  immediateU'  car- 


4 


United  States  Courts. 


[Part  2 


ried  into  execution,  and  no  appeal  or  writ  of  error  from  the 
decision  of  the  Circuit  Court  so  remanding  such  cause  shall  l>e 
allowed. 

DISTRICT  COURTS. 

District  Courts  of  the  United  States  have  jurisdiction — 

Of  suits  for  the  collection  of  the  Internal  Revenue. 

Of  all  suits  for  penalties  and  forfeitures  incurrerl  under 
the  law  of  the  United  States. 

Of  all  causes  of  action  arising  under  the  postal  laws  of  the 
United  States. 

Of  certain  admiralty  cases,  etc.,  etc. 


PART  III. 


State  of  California. 


CHAPTER  I. 


COURTS  an:^  their  jurisdiction. 


The  following  are  the  Courts  of  justice  of  this  State  : 


The  Court  of  Impeachment ; 

The  Supreme  Court ; 

The  Superior  Courts  ; 

The  Justices'  Courts  ; 

The  Police  Courts,  and  such  other  inferior  Courts  as  the 
Legislature  may  establish  in  an}-  incorporated  city  or  town,  or 
city  and  county. 

Tlie  three  first -named  Courts  are  Courts  of  Record. 


1. 
2. 

:i 
4. 

.5. 


Court  of  Impeachment. 

The  Court  of  Impeachment  is  the  Senate;  when  sitting  as 
such  Court  the  Senators  shall  be  upon  oath;  and  at  least  two- 
thirds  of  the  members  elected  shall  be  necessary  to  constitute 
a  quorum. 

The  Court  has  jurisdiction  to  try  impeachments,  when  pre- 
sented by  tlie  Assembly,  of  the  Governor,  Lieutenant-Governor, 
Secretary  of  State,  Controller,  Treasurer,  Attorney-General, 
Surveyor-General,  Chief  Justice  of  the  Supreme  Court,  Asso- 


California. 


[Part  3 


ciate  Justices  of  the  Supreme  Court,  and  Judges  of  the  Superior 
Courts,  for  any  misdemeanor  in  office. 

The  officers  of  the  Senate  are  the  officers  of  the  Court. 


ii 


Supreme  Court. 

The  Supreme  Court  .shall  consist  of  a  Chief  Justice  and  si.\ 
A.ssociate  Justices. 

There  shall  be  two  departments  of  the  Supreme  Court,  de- 
nominated respectively  Department  One  and  Department  Two. 
The  Chief  Justice  shall  assign  three  of  the  Associated  Justices 
to  each  department,  and  such  assignment  may  be  changetl  by 
him  from  time  to  time;  provided,  that  the  Associate  Justices 
shall  be  competent  to  sit  in  either  department,  and  may  inter- 
change with  one  another  by  agreement  among  themselves,  or 
if  no  such  ajireement  be  made,  as  ordered  bv  the  Chief  Justice. 
The  Chief  Justice  may  sit  in  cither  department,  and  shall  pre- 
side when  so  sitting;  but  the  Justices  assigned  to  each  depart- 
ment ^hall  select  one  of  their  number  as  presiding  Justice. 
Each  of  the  departments  shall  have  the  power  to  hear  and  <lo- 
termine  causes  and  all  (juestions  arising  therein,  subject  to  the 
provisions  in  relation  to  the  Court  in  bank.  The  presence  of 
three  Justices  shall  be  necessai'y  to  transact  any  business  in 
either  of  the  departments,  except  such  as  may  be  done  at  cham- 
bers; but  one  or  more  of  the  Justices  may  adjourn  from  time 
to  time  with  the  same  effect  as  ii  all  were  present,  and  the  con- 
currence of  three  Justices  shall  be  necessary  to  pronounce  a 
judgment;  provided,  that  if  three  do  not  concur  the  cause  nmy 
be  reheard  in  the  .same  department,  or  transmitted  to  the  other 
department,  or  to  the  Court  in  bank. 

The  Chief  Justice  .shall  apportion  the  business  to  tlie  de- 
partments, and  may,  in  his  discretion,  order  any  cause  pending 
before  the  Court  to  be  heard  and  decided  l)y  the  Court  in  bank. 
The  order  may  be  made  before  or  after  judgment  pronounced 
by  a  department;  but  when  a  cause  has  V)een  allotted  to  one  of 
the  <lcpartments,  and  a  judgment  pronounced  therein,  the  order 
must  be  made  within  thirty  days  after  such  judgment,  and 


Chap.  1] 


California. 


concuri-ed  in  by  two  Associate  Justices;  and  if  so  made,  it  shall 
have  the  effect  to  vacate  and  set  aside  the  judoment.  Any 
four  justices  may,  either  before  or  after  judgment  by  a  depart- 
ment, order  a  cause  to  be  heai'd  in  bank.  If  the  order  be  not 
made  within  the  time  above  limited,  the  judgment  shall  be 
final;  provided,  that  no  judgment  by  a  department  shall  bo- 
come  final  until  the  expiration  of  the  period  of  thirty  days 
aforesaid,  unless  approved  by  the  Chief  Justice  in  writing, 
with  the  concurrence  of  two  Associate  Justices. 

The  Chief  Justice  or  any  four  Justices  may  convene  the 
Court  in  bank  at  any  time,  and  the  Chief  Justice  shall  be  the 
presiding  Justice  of  the  Court  when  so  convened.  The  pres- 
ence of  four  Justices  shall  be  necessary  to  transact  any  busi- 
ness, and  the  concurrence  of  four  Justices  present  at  the  argu- 
ment shall  be  necessary  to  pronounce  a  judgment  in  the  Court 
in  bank;  provided,  that  if  four  Justices  so  present  do  not  con- 
cur in  a  judgment,  then  all  the  Justices  (|ualified  to  sit  in  the 
cause  shall  hear  the  argument,  but  to  render  a  judgment  a  con- 
ciirrence  of  four  Justices  shall  be  necessary;  and  everj'^  judg- 
ment of  the  Court  in  bank  shall  be  final,  except  in  cases  in 
which  no  previous  judgment  has  been  rendered  in  one  of  the 
departments,  and  in  such  cases  tlie  judgment  of  the  Court  in 
bank  shall  be  final,  unless  within  thirty  days  after  such  judg- 
ment an  order  be  made  in  writing,  signed  by  five  Justices, 
granting  a  rehearing. 

In  case  of  the  absence  of  the  Chief  Justice  from  the  place 
at  which  the  Court  in  bank  is  held,  or  his  inability  to  act,  the 
Associate  Justices  shall  select  one  of  their  own  number  to  per- 
form the  duties  and  exercise  the  powers  of  the  Chief  Justice 
during  such  absence  or  inability  to  act. 

The  Supreme  Court  of  the  State  of  California  has  original 
and  appellate  jurisdiction.     Its  original  jiirisdidion  extends — 

To  the  issuance  of  writs  of  mandamus,  certiorari,  prohibi- 
tion, and  habeas  corpus,  and  all  other  writs  necessary  or  proper 
to  the  complete  e.xercise  of  its  appellate  jurisdiction. 

It  hits  appellate  jurisdiction — 


8 


California. 


[Part  8 


1.  In  all  cases  in  equity  except  such  as  arise  in  Justices' 
Courts. 

2.  In  all  cases  at  law  which  involve  the  title  or  pos.session 
of  real  estate  on  the  legality  of  any  tax,  impost,  assessment, 
toll,  or  municipal  fine,  or  in  which  the  demand,  exclusive  of 
interest  or  the  value  of  the  property  in  controversy,  amounts 
to  three  hundred  ilollars. 

8.  In  all  cases  of  forcible  entry  and  detainer,  proceedings 
in  insolvency,  actions  to  prevent  or  abate  a  nuisance,  and  in 
all  such  probate  matters  as  may  be  provided  by  law. 

i.     In  all  special  proceedings. 

5.  In  all  criminal  cases  pro.secuted  by  indictment,  or  in- 
formation, in  a  Court  of  record,  on  (juestions  of  law  alone. 


Superior  Courts. 

There  shall  be  in  each  of  the  organized  counties,  or  cities 
and  counties  of  the  State,  a  Superior  Court,  for  each  of  which 
one  Judge,  and  for  some  of  which  two  or  more  Judges  shall  be 
elected;  'provided,  that  in  and  for  the  counties  of  Yuba  and 
Sutter  combined,  only  one  Superior  Judge  shall  be  elected, 
who  .shall  hold  the  Superior  Courts  of  both  said  counties,  and 
in  accordance  with  such  rules  for  the  dispatch  of  business  in 
Vtoth  said  counties  as  he  may  adopt. 

The  jurisdiction  of  the  Superior  Courts  is  of  two  kinds: 

1.  Original;  and 

2.  Appellate. 

The  Superior  Courts  .shall  have  original  jurisdiction — 

1.  In  all  ca.ses  of  equity. 

2.  In  all  civil  actions  in  which  the  subject  of  litigation  is 
not  capable  of  pecuniary  e.stimati(m. 

8.  In  all  cases  at  law  which  involve  the  title  or  possession 
of  real  property,  or  the  legality  of  any  tax,  impost,  asses.sment, 
toll,  or  municipal  fine,  and  in  all  other  cases  in  which  the  de- 
mand, exclu.sive  of  interest  or  the  value  of  the  property  in  con- 
troversy, amounts  to  three  hundred  dollars. 


Chap.  1] 


California. 


9 


■1 


4.  Of  actions  of  forcible  entry  and  detainer,  of  proceedings 
in  insolvency,  of  actions  to  prevent  or  abate  a  nuisance,  of  all 
matters  of  probate,  of  divorce  and  for  annulment  of  marriage, 
and  of  all  such  special  cases  and  proceedings  as  are  not  other- 
wise provided  for. 

•").  In  all  criminal  cases  amounting  to  felony,  and  cases  of 
misdemeanor  not  otherwise  provided  for.  Said  Courts  shall 
have  the  power  of  naturalization,  and  to  issue  papers  therefor. 
Said  Courts  and  their  Judges,  or  anj^  of  them,  .shall  have  power 
to  issue  writs  of  mandamus,  certiorari,  prohibition,  quo  war- 
ranto, and  of  habeas  corpus,  on  petition  by,  or  on  behalf  of 
any  per.son  in  actual  custody,  in  their  respective  counties. 
Injunctions  and  writs  of  prohibition  may  be  issued  and  served 
on  legal  holidays  and  non-judicial  days. 

The  Superior  Courts  shall  have  appellate  jurisdiction  in 
such  cases  arising  in  Justices'  and  other  inferior  Courts  in  thei)' 
I'espective  counties  as  may  be  prescribed  by  law. 

Justices'  Courts. 

The  Ju.stice.s'  Courts  .shall  have  civil  jurisdiction — 

1.  In  actions  arising  on  contract  for  the  rjcovery  of  money 
only  if  the  sum  claimed,  exclusive  of  interest,  does  not  amount 
to  three  hundred  dollars. 

2.  In  actions  for  damages  for  injury  to  the  person,  or  for 
taking,  detaining,  or  injuring  personal  property,  or  for  injury 
to  real  property  where  no  issue  is  raised  by  the  verified  answer 
of  the  defendant,  involving  the  title  to  or  possession  of  the 
same,  if  the  damage  claimed  do  not  amount  to  three  hundred 
dollars. 

.'}.  In  actions  to  recover  the  possession  of  personal  property, 
if  the  value  of  such  property  docs  not  amount  to  three  hundred 
<l()llars. 

4.  In  actions  for  a  fine,  penalty  or  forfeiture,  not  amount- 
ing to  three  hundred  dollars,  given  by  a  statute,  or  the  ordi- 
nance of  an  incorporated  city  and  county,  city,  or  town,  where 
no  issue  is  raised  by  the  answer  involving  the  legality  of  any 
tax,  impo.st,  assessment,  toll,  or  municipal  fine. 


10 


California. 


[Part  3 


■  .-I 

3 


5.  In  actions  upon  bonds  or  undertakings  conditioned  for 
the  payment  of  money,  if  the  sum  claimed  docs  not  amount  to 
three  hundred  dollars,  though  the  penalty  may  exceed  that  sum. 

6.  To  take  and  enter  judgment  for  the  recovery  of  mom-y 
on  the  confession  of  a  defendant,  when  the  amount  confessed, 
exclusive  of  interest,  does  not  amount  to  three  hundred  dollars. 

The  Justices'  Courts  shall  have  concurrent  juristliction  with 
the  Superior  Courts  within  their  respective  townships: 

1.  In  actions  of  forcible  entry  and  detainer,  where  the 
rental  value  of  the  property  entered  upon  or  unlawfully  de- 
tained does  not  exceed  twenty-five  dollars  per  month,  and  the 
whole  amount  of  damages  claimed  does  not  exceed  two  hundred 
dollars. 

2.  In  actions  to  enforce  and  foreclose  liens  on  persf^ial 
property,  where  neither  the  amount  of  the  liens  nor  the  value 
of  the  property  amounts  to  three  hundred  dollars. 

Except  as  heretofore  provided,  the  jurisdiction  of  the  Jus- 
tices' Courts  shall  not,  in  any  case,  trench  upon  the  jurisdiction 
of  the  several  Courts  of  record  of  the  State,  nor  extend  to  any 
action  or  proceeding  against  ships,  vessels,  or  boats,  for  the 
recovery  of  seamen's  wages  for  a  voyage  performed  in  whole 
or  in  part  without  the  waters  of  this  State. 

The  Justices'  Courts  shall  have  jurisdiction  of  the  following 
public  oll'enses  committed  within  the  respective  counties  in 
which  such  Courts  are  established : 

1.  Petit  larceny. 

2.  Assault  or  l)attery  not  charged  to  have  been  connnitted 
upon  a  public  officer  in  the  discharge  of  his  duties,  or  to  have 
been  committed  with  such  intent  as  to  render  the  offense  a 
felony. 

3.  Breaches  of  the  peace,  riots,  routs,  affrays,  committing 
a  willful  injury  to  property,  and  all  misdemeanors  punishable 
by  fine  not  exceeding  five  hundrud  dollars,  or  imprisonment 
not  exceeding  six  months,  or  by  both  such  fine  or  imprisonment. 


'I 


Chap.  2] 


California. 


GHAPTE3R  II. 

TERMS  OF  COURTS,  WHEN  AND  WHERE  HELD. 

Supreme  Court. 

The  Supreme  Court  shall  always  be  open  for  the  transaction 
of  business,  , 

It  .sliall  hold  regular  sessions  for  the  hearing  of  causes,  either 
in  bank  or  in  one  or  both  of  its  departments,  at  the  capital  of 
the  State,  commencing  on  the  first  Mondays  of  May  and  the 
second  Mondays  of  November.  At  the  city  and  county  of  San 
Francisco,  commencing  on  the  second  Mondays  of  January  and 
third  Mondays  of  July;  and  at  the  city  of  Los  Angeles,  com- 
mencing on  the  first  Mondays  of  April  and  the  second  Mondays 
of  October,  and  special  sessions  at  either  of  the  above-named 
places  at  such  other  times  as  may  be  prescribed  by  the  Judges 
thereof. 

Superior  Courts. 

The  Superior  Courts  shall  bo  always  open  (legal  holidays 
and  non-judicial  days  excepted),  and  they  shall  hold  their  ses- 
si(ins  at  the  county  seats  of  the  several  counties,  or  cities  and 
counties,  respectively.  They  shall  hold  regular  sessions,  com- 
mencing on  the  first  Montlays  of  January,  April,  July  and 
October,  and  special  sessions  at  such  other  times  as  may  be 
prescribed  by  the  Judge  or  Judges  thereof;  provided,  that  in 
the  city  and  county  of  San  Francisco  the  presiding  Judge  shall 
prescribe  the  times  of  holding  such  special  .sessions. 

Justices'  Courts. 

These  Courts  may  be  held  at  any  place  selected  by  the  Jus- 
tice holding  the  same,  in  the  township  or  city  for  which  he  is 
elected,  and  they  are  always  open  for  the  transaction  of  busines.s. 


18 


California.  [I'art  :{ 

The  Circuit  Court  of  the  United  States  —  District 

of  California. 


The  regular  term  shnll  be  heltl  at  San  Francisco,  as  fcjllows: 
On  the  first  Monday  in  February,  second  Monday  in  July, 
and  fourth  Monday  in  November  of  each  year. 

The  Circuit  Judge  may  appoint  special  sessions  of  tlie  Cir- 
cuit Court,  to  be  held  at  the  place  where  the  regular  session 
is  held. 


The  District  Court  of  the  United  States 

of  California. 


■District 


The  rec^ular  terms  shall  be  held  at  San  Francisco,  as  follows: 
On  the  first  Monday  in  February,  on  the  .second  Monday  in 

July,  and  on  the  fii'st  Monday  in  Novenibei-. 

Whenever  the  Judge  fails  to  hold  any  regular  term  thereof, 

it  shall  be  his  duty,  if  it  appears  that  the  business  of  the  Court 

requires  it,  to  hold  an  intermediate  tcim. 


CHAPTER  III. 

PLACE  OF  TRLy_.  OF  CIVIL  ACTIONS. 

The  process  of  the  Sn;  .rlor  Courts  .shall  extend  to  all  parts 
of  the  State;  provided,  that  all  actions  for  the  recovery  of 
the  posses.sion  of,  quieting  the  title  to,  or  for  the  enforcement 
of  liens  upon  real  estate,  shall  be  commenced  in  the  county  in 
which  the  real  estate,  or  any  part  thereof  affected  by  .such 
action  or  actions,  i.s  situated. 

Actions  for  the  following  cau.ses  must  be  tried  in  the  county 
in  which  the  subject  of  the  action,  or  some  part  thereof,  is 
situated : 

1.  For  the  recovery  of  real  i)roperty,  or  of  an  estate  or 
interest  therein,  or  for  the  determination,  in  any  form,  of  such 
right  or  interest,  and  for  injuries  to  real  property. 

2.  For  partition  of  real  property. 


:\ 


I 


Chap.  .'{] 


Califoiinia. 


18 


'.].  For  the  fort'closurc  of  all  liens  and  uiort(;ai:cs  on  real 
property. 

Where  the  real  property  is  situated  partly  in  one  county 
and  partly  in  another,  the  plaintifi  may  select  either  of  the 
counties,  and  the  county  so  selected  is  the  proper  county  for 
the  trial  of  such  action. 

Actions  for  the  followin^^  causes  must  be  tried  in  the  county 
where  the  cause  or  some  part  thereof  arose : 

1.  Foi'  Hie  recovery  of  a  penalty  or  forfeiture  imposed  by 
statute,  except  that  when  it  is  impo.sed  for  an  offen.se  com- 
mitted on  a  lake,  river,  or  other  .stream  of  water  situated  in 
two  or  more  counties,  the  action  may  be  brought  in  any  county 
bordering  on  .such  lake,  river,  or  stream,  and  opposite  to  the 
place  where  the  offense  was  connnitted. 

2.  Against  a  public  officer  or  person  especially  appointed 
to  execute  his  duties,  for  an  act  done  by  him  in  virtue  of  his 
office,  or  against  a  per.son  who  by  his  connnand,  or  in  his  aid^ 
<loes  anything  touching  the  duties  of  such  officer. 

Actions  against  counties  may  be  commenced  and  tried  in 
any  county  in  the  judicial  district  in  which  such  county  is 
situated,  unless  such  actions  are  between  counties,  in  which 
case  they  may  be  commenced  and  tried  in  any  county  not  a 
])artv  thereto. 

All  other  actions  must  be  tried  in  the  county  in  wiiich  the 
defendants,  or  some  of  them,  reside  nt  the  commencement  of 
the  action;  or  if  none  of  the  defendants  reside  in  the  State,  or 
if  residing  in  this  State,  the  county  in  which  they  reside  is  un- 
known to  the  plaintiff*,  the  same  may  be  tried  in  any  county 
which  the  plaintifi  may  designate  in  his  complaint;  and  if  the 
defendant  is  about  to  depart  from  the  State,  such  action  may 
l»e  tried  in  any  county  where  either  of  the  parties  reside,  or 
where  .service  is  had. 

If  the  county  in  which  the  action  is  commenced  is  not  the 
proper  county  for  the  trial  thereof,  the  action  may,  notwith- 
standing, be  tried  therein,  unless  the  defendant,  at  the  time  he 


14 


California. 


[Part  :{ 


appears  and  answers  or  demurs,  files  an  affidavit  of  merits,  and 
demands  in  writing  that  the  trial  be  had  in  the  proper  county. 

The  place  of  trial  may  be  changed  in  the  following  cases: 

1.  When  the  county  designated  in  the  '•'^mplaint  is  ntjt 
the  proper  country. 

2.  When  there  is  reason  to  believe  that  an  impartial  trial 
cannot  be  ha<l  therein. 

3.  When  the  convenience  of  witnesses  and  the  ends  of 
justice  would  be  promoted  by  the  change. 

4.  When  from  any  cause  the  Judge  is  disqualified  from 
acting. 

Place  of  Trial  of  Action  in  Justices'  Courts. 

1.  If  there  be  no  Justices'  Courts  for  the  township  or  city 
in  which  the  defendant  resides:  in  any  city  or  township  of  the 
county  in  which  lie  resides. 

2.  \Vhen  two  or  more  persons  are  jointly,  or  jointly  and 
severally,  bound  in  an}'  debt  or  contract,  or  otherwise  jointly 
liable  in  the  same  action,  and  reside  in  different  town.ships  or 
different  cities  of  the  same  country:  or  in  different  counties,  in 
the  township  or  city  in  which  any  of  the  pev.sons  liuble  nia\ 
reside. 

3.  In  case  of  injury  to  tlie  person  or  propcM'ty  :  in  the 
township  or  city  where  the  injury  was  committed,  or  where 
the  defendant  resides. 

4.  If,  for  the  recovery  of  personal  prt)perty,  or  the  value 
thereof,  or  damages  for  taking  or  detaining  the  same :  in  the 
towns^r.p  or  city  in  which  the  property  may  be  found,  or  in 
which  till'  property  was  taken,  or  in  which  the  defendant 
resides, 

.).  When  the  defendant  is  a  non-resident  f>f  the  county  : 
in  any  township  or  city  wherein  he  may  l)e  found. 

(I.  When  the  defendant  is  a  non-resident  of  the  State  :  in 
any  townshiji  or  city  in  the  State. 

7.  When  a  person  has  contracted  to  perform  an  obligation 
at  a  particular  place,  an<l  resides  in  another  comity,  township 


Chap.  :3] 


California. 


15 


rial 


or  city :  in  the  township  or  city  in  which  such  obligation  is  to 
be  performed,  or  in  which  he  resides  ;  and  the  township  or  city 
in  which  the  obligation  is  incurred  shall  be  deemed  to  be  the 
township  or  city  in  which  it  is  to  be  performed,  unless  there 
is  a  special  contract  to  the  contrary. 

8.  When  the  parties  voluntarily  appear  and  plead  without 
summons :  in  any  township  or  city  in  the  State. 

9.  In  all  other  cases :  in  the  township  or  city  in  which  the 
defendant  resides. 

The  place  of  trial  may  be  changed  in  the  following  cases  : 

1.  When  it  appears  to  the  satisfaction  of  the  Justice  be- 
fore whom  the  action  is  pending,  by  affidavit  of  either  party; 
that  such  Justice  is  a  material  witness  for  either  party. 

2.  When  either  party  makes  and  illes  an  affidavit  that  he 
l)elieves  that  he  cannot  have  a  fair  and  impartial  trial  before 
such  Justice,  by  reason  of  the  interest,  prejudice  or  bias  of  the 
Justice. 

S.  When  a  jury  has  been  demanded,  and  either  party 
makes  and  files  an  affidavit  that  he  cannot  have  a  fair  and 
impartial  trial  on  account  of  the  bias  or  prejudice  of  the 
citizens  of  the  township  or  citj-,  against  him 

4.  When  from  any  cause  the  Justice  is  disqualified  from 
acting. 

o.     When  the  Justice  i.s  sick  or  unable  to  act. 


CHAPTER  IV. 
LIMITATION  OF  CIVIL  ACTIONS. 

The    periods    prescrilied    for   the   commencement   of   civil 
actions  are  as  follows  : 

Within  Five  Years. 

1.  An  action  upon  a  judgment  or  decree  of  any  Court  of 
the  United  States,  or  of  any  State  within  the  United  State.<^. 

2.  An  action  for  mesne  prolHs  of  real  property. 


16 


California. 


Within  Four  Years. 


[Part  :^ 


Any  action  upon  any  contract,  oblif^ation  or  liability  found- 
ed upon  an  interest  in  writing  executed  in  this  State  (promis- 
sory notes  included). 

Within  Three  Years. 

1.  An  action  upon  a  liability  created  by  statute  other 
than  a  penalty  or  forfeiture. 

2.  An  action  for  trespass  upon  real  property. 

3.  An  action  for  taking,  detaining  or  injuring  any  i^,'  ;i.- 
or  chattels,  including  actions  for  the  specific  recovery  of  pev- 
sonal  property. 

4.  An  action  for  relief  on  the  ground  of  fraud  or  mistake. 
In  this  case  the  time  begins  to  run  from  the  discovery,  by  the 
aggrieved  party,  of  the  facts  constituting  the  fraud  or  mistak 


Within  Two  Years. 

1.  An  action  upon  a  contract,  obligation  or  liability,  not 
founded  upon  an  instrument  of  writing,  made  within  or  out  of 
this  State  (accounts  included). 

2.  An  action  founded  upon  an  instrument  of  writing  exe- 
cuted out  of  this  State  (prondssory  notes  included). 

3.  An  action  against  a  Sheriff,  Coroner  or  Constable,  up"n 
a  liability  incurred  by  the  doing  of  an  act  in  ids  official  capae- 
ity  and  in  virtue  of  his  office,  or  by  the  omission  of  an  official 
duty,  including  the  non-payment  of  money  collected  upon  an 
execution — except  for  an  escape. 

4.  An  action  to  recover  damages  for  the  death  of  one 
caused  by  the  wrongful  act  or  negh'vo  of  another. 


^r" 


■.<.    -^ 


Within  One  Year. 

1.  An  action  upon  a  statute  ior  a  |)rnalty  or  forfeiture, 
v.here  the  action  is  given  to  an  ind-vidu>tl,  o)-  t..-  m  individual 
anil  the  State,  except  where  the  statute  imposinj'  \i  prescrilies 
a  ditftTent  limitation. 


Chap.  4] 


California. 


17 


pec- 


:r'^ 


If 


2.  An  action  for  libel,  slander,  assault,  battery,  false  im- 
prisonment, or  seduction. 

3.  An  action  against  a  Sheritt"  or  other  officer  for  the 
escape  of  a  prisoner  arrestetl  or  imprisoned  on  civil  process. 

4.  An  action  against  a  municipal  corporation  for  damages 
for  injuries  to  property  caused  Ity  a  mob  or  riot. 

Within  Six  Months. 
An  action  against  an  officer,  or  officer  (Je  facto — 

1.  To  recover  any  goo<ls,  wares,  merchandise,  or  other 
property,  seized  by  such  officer  in  his  oflficial  capacity  as  Tax 
Collector,  or  to  recover  the  price  or  value  of  any  goods,  wares, 
merchandise,  or  otlier  personal  property  so  seized,  or  for  dam- 
ages for  the  seizure,  detention,  sale  of,  or  injury  to  any  goods, 
wares,  merchandise,  or  other  personal  property  seized,  or  for 
damages  done  to  any  person  or  property  in  ui' iking  any  such 
seizure. 

2.  To  recover  stock  sold  for  a  delinf(uent  assessment,  upon 
the  ground  of  irregularity  in  the  assessment,  or  irregularity  or 
defect  of  the  notice  of  sale,  or  defect  or  irregularity  in  the  sale. 

»  No  Limitation. 

To  actions  for  the  recovery  of  money  or  other  property  de- 
posited with  any  bank,  banker,  trust  company,  «»r  savings  and 
loan  so'-iety. 

General  Provisions. 

The  period  of  limitation  begins  to  run  from  the  time  the 
cau.se  of  action  accrues,  or  in  (jther  won  Is,  from  the  time  when 
stiit  can  be  brought. 

A  partial  payment  of  an  amount  dui'  under  an  agreement 
in  writing  (promissory  notes  included),  or  under  an  agreement 
not  in  writing  (book  accounts  ijieluded)  does  not  prevent  the 
statute  ruiuiing;  but  where  a  balance  is  due  upon  a  nuitual, 
open  and  current  account,  where  there  have  been  reciprocal 
denuuids  between  the  i)arties,  the  statute  begins  to  run  from 
the  last  item  proved  in  the  account  on  either  side. 


"t 


18 


California. 


[Part  .S 


! 


i:!: 


11!  'ij 


If  when  the  cause  of  action  accrues  against  a  person  lie  is 
out  of  the  State,  the  action  may  be  connnenced  within  the  time 
above  Uinited,  after  his  return  to  the  State,  and  if,  after  the 
cause  of  action  accrues,  he  departs  from  the  State,  the  time  of 
his  absence  is  not  part  of  the  time  limited  for  the  connnence- 
ment  of   h^  action. 

If  a  p.;  ntitled  to  bring  an  action  be,  at  t^^'j  time  the 

cause  of  act.>  accrues,  either  within  the  age  of  majority,  in- 
sane, imprisoned  on  a  criminal  charge,  or  in  execution  under 
the  sentence  of  a  Criminal  Court  for  a  term  less  than  for  life, 
or  a  married  woman,  and  her  husband  be  a  necessary  party 
with  her  in  commencing  such  action,  the  time  of  such  disability 
is  not  a  part  of  the  time  limited. 

If  a  person  entitled  to  bring  an  action  die  before  the  ex- 
piration of  the  time  limited  for  the  connnencement  thereof ,  and 
the  cause  of  action  survive,  an  action  nuiy  be  connnenced  by 
his  representatives,  after  the  expiration  of  that  time,  and  with- 
in six  months  from  his  death.  If  a  person  against  whom  an 
action  may  be  brought,  die  before  the  expiration  of  the  tiiiif 
limited  for  the  connnencement  thereof,  and  the  cause  of  action 
survive,  an  action  ma}'  be  connnenced  against  his  represent- 
atives after  the  expiration  of  that  time,  and  within  one  year 
after  the  issuing  of  letters  testamentary  or  of  administration. 

When  a  pei'son  is  an  alien  subject,  or  citizen  of  a  country 
at  war  with  the  United  States,  the  time  of  the  contiiniance  of 
the  war  is  not  part  of  the  period  limited  for  the  conimence- 
ment  of  the  action. 

WlitMi  the  commencement  of  an  action  is  staycil  by  injunc- 
lion  or  statutory  prohiltition,  the  tiuK-  of  the  continuanec  of 
the  injunction  or  prohibition  is  not  part  of  the  time  limited  for 
the  commencement  of  the  action. 

When  a  cause  of  action  has  arisen  in  another  State,  or  in  a 
foreign  country:  and  by  the  laws  thereof  an  action  thereon  can- 
not there  be  maintained  against  a  person  l>y  reason  of  the  laj 
of  time,  an  acticm  thereon  shull  not  be  maintained  against  hii 
in  this  State,  except  in  favor  of  our  who  has  been  a  citi/en  ot 


)SC 

11 


^ 


Chap.  4] 


California. 


19 


this  State,  and  who  has  held  the  cause  of  action  from  the  time 
it  accrued. 

No  acknowledr^enient  or  promise  is  sufficient  evidence  of  a 
new  or  continuing  contract,  by  which  to  take  the  case  out  of 
the  operation  of  the  statute,  unless  the  same  is  contained  in  some 
writing,  signed  by  the  party  to  be  charged  thereby. 


CHAPTER  V. 

PARTIES  TO  SUITS. 
COMMENCEMENT  OF  ACTIONS,  ETC. 

Every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  in  the  case  of  an  executor,  or  administrator, 
or  trustee  of  an  express  trust  (including  a  person  with  whom, 
or  in  whose  name,  a  contract  is  made  for  the  benefit  of  another) 
or  a  pL-rson  expressly  authorized  by  statute,  who  ma}'  sue  with- 
out joining  with  him  the  person  or  persons  for  whose  benefit 
the  action  is  brought. 

In  the  case  of  an  assignment  of  a  right  to  recover  money  or 
other  personal  property  by  a  judicial  proceeding,  the  action  by 
the  assignee  is  without  prejudice  to  any  set  ofi'or  other  defense 
existing  at  the  time  of,  or  before  notice  of,  the  assignment ;  Imt 
this  does  not  apply  to  a  negotiable  promissory  note  or  bill  of  ex- 
change, transferred,  in  good  faith  and  upon  good  consideration, 
before  maturity. 

Persons  .severally  liable  upon  the  same  obligation  or  instru- 
ment, including  the  parties  to  bills  of  exchange  and  promissory 
notes,  and  sureties  on  the  same  or  separate  instruments,  nuiy  all 
or  any  of  them  be  included  in  the  same  action,  at  the  option  of 
the  plaintifl". 

Civil  actions  in  the  Courts  of  this  State  are  commenced  ly 
filing  a  complaint.  In  the  Justices*  Courts,  by  filing  a  com- 
plaint and  i.ssuing  a  sunnnons  thereon,  or  by  tlie  vohmtaiy  np- 
jiearance  and  pleading  of  the  parties. 


1  ■ 


\M\ 


I 


20 


California. 


[Part  ,'3 


The  plaintiff  may  have  summons  issued  .  y  time  within  one 
year  after  the  complaint  is  Hied  with  the  Clerk  or  Justice. 

In  the  Superior  Courts  the  tlefeiidant  is  allowed  ten  days 
after  the  service  of  suunnons  and  complaint  to  appear  and  an- 
swer the  complaint,  where  service  is  made  within  the  county  in 
which  the  action  is  brour,dit,  and  thirty  days  if  served  elsewhere. 

In  the  Superior  Courts  thesunnnons  and  copy  of  complaint 
may  be  served  by  the  Sheritf  of  the  county  where  defendant 
may  be  found,  or  by  any  other  person  over  the  auje  of  eighteen- 
not  a  party  to  the  action. 

On  Whom  Summons  to  be  Served. 

1.  If  the  suit  is  against  a  corporation  formed  under  the  laws 
of  this  State,  the  President  or  other  head  of  the  corporation, 
Secretary,  Cashier,  or  managing  Agent  thereof. 

2.  If  against  a  foreign  corporation,  or  a  non-resident,  joint- 
stock  compa'n^or  association,  doing  business  and  having  a  man- 
aging or  business  Agent,  Cashier,  or  Secretary  within  this 
State ;  the  Agent,  Cashier  or  Secretary. 

3.  If  against  a  minor  under  the  age  of  fourteen  years,  re- 
siding within  this  State :  such  minor  personally,  and  also  his 
father,  mother,  or  guardian;  or  if  there  be  none  within  this 
State,  then  any  person  having  the  care  or  control  of  such  minor, 
or  with  whom  he  resides,  or  in  whose  service  he  is  employed. 

4.  If  against  a  ])"rson  residing  within  this  .State,  who  has 
been  ju<licially  declared  to  be  of  unsound  mind,  or  incapable  of 
conducting  his  own  atlairs,  and  for  whom  a  guardian  has  been 
appointed:  such  person,  and  also  his  guardian. 

5.  If  against  a  county,  city  or  town  :  the  President  of  the 
Board  of  Supervisors,  President  of  the  Council,  or  Trustees,  (jr 
other  head  of  the  legislative  depai'-inent  thereof. 

0.  In  all  other  cases  the  defendant  must  be  served  jierson- 
ally. 

Service  by  Publication. 

When  the  person  on  whom  the  .service  is  to  be  nuide  resides 
out  of   the  State,  or  has  departed,  from  the  State,  or  cannot. 


Chap.  5] 


Catjfornia. 


21 


after  duo  diligence,  be  found  vithin  the  State,  or  conceals  him- 
self to  avoid  service,  or  is  a  foreign  corporation  having  no  man- 
aging or  Itusiness  Agent,  Cashier,  or  Secretary  within  the 
State,  and  that  fact  appears  hy  affidavit  to  tlic  satisfaction  of 
thi;  Court,  or  a  Judge  thereof,  and  it  also  appears  by  such  affi- 
davit, or  l)y  the  verified  complaint  on  tile,  that  a  cause  of  action 
exists  against  the  defendant  in  respect  to  whom  the  service  is 
to  be  made,  or  that  he  is  a  necessary  or  proper  party  to  the 
action,  such  Court  or  Judge  may  make  an  order  that  the  ser- 
vice be  nmde  by  the  publication  of  the  suunnons. 

The  order  must  direct  the  publication  to  be  made  in  a  news- 
pii])er,  to  be  designated  as  most  lik(,'ly  to  give  notice  to  the 
person  to  be  served,  and  for  such  length  of  time  as  may  be 
deemed  reasonable,  at  least  once  a  week ;  but  publication 
against/  a  defemlant  residing  out  of  the  State,  or  absent  there- 
from, must  not  be  less  than  two  months.  In  case  of  publica- 
tion, where  the  residence  of  a  non-resident  or  absent  defendant 
is  known,  the  Court  or  a  Judge  must  direct  a  copy  of  the  sum- 
mons and  complaint  to  be  forthwith  deposited  in  the  Post-office, 
directed  to  the  person  to  be  served,  at  his  place  of  residence. 
When  publication  is  ordered,  personal  service  of  a  copy  of  thu 
suunnons  and  complaint  out  of  the  State  is  equivalent  to  pub- 
lication and  depo.sit  in  the  Post-office.  In  either  case,  the  ser- 
vice of  the  summons  is  complete  at  the  expiration  of  the  time 
prescribed  by  the  order  for  publication. 

Provisions  in  Justices'  Courts. 


In  Justices'  Courts,  the  time  for  the  appearance  of  the  de- 
fendant must  be  set  forth  in  the  suunnons,  and  must  be  as  fol- 
lows : 

1.  Forthwith,  if  an  order  of  arrest  is  indorsed  upon  the 
sunnnon.s. 

2.  In  all  other  cases  the  suunnons  must  contain  a  direction 
that  the  defendant  must  appear  and  answer  the  complaint  with- 


22 


California. 


[Part  :3 


in  five  clays,  if  the  summons  be  served  in  the  city  and  county, 
township  or  city,  in  which  tlie  action  is  broui,dit ;  within  ten 
days  if  served  out  of  the  township  or  city,  but  in  the  county  in 
which  the  action  is  brought ;  and  withhi  twenty  days  if  served 
elsewhere. 

On  whom  sunnnons  to  be  served  in  Justice-Court  actions : 
see  rule  for  service  in  Superior  Courts. 

Rule  in  Superior  Court  applicable  to  Justices'  Courts  in 
service  of  summons  by  publication. 

In  Justice-C!ourt  actions  the  summons  cannot  be  served  out 
of  the  county  of  Justice  before  whom  the  action  is  brou<,dit,  ex- 
cept when  the  action  is  brought  upon  a  joint  contract  ov  oIjH- 
gation  of  two  or  more  persons  wdio  reside  in  different  counties, 
and  the  sunnnons  has  been  served  upon  the  defendant  resident 
of  the  county,  in  which  case  the  summons  may  be  served  upon 
the  other  defendants  out  of  the  county ;  and  except,  also,  when 
an  action  is  brought  against  a  party  who  has  contracted  to 
perform  an  obligation  at  a  particular  place,  and  resides  in  a 
different  county,  in  which  case  sunnnons  may  be  served  in  the 
county  where  he  resides ;  and  except,  also,  where  an  action  is 
brought  for  injury  to  person  or  property  and  the  defendant  re- 
sides in  a  different  county,  in  which  case  summons  may  be 
served  in  the  county  where  the  defendant  resides. 

The  Justice  may,  within  a  year  from  the  date  of  filing  the 
complaint,  issue  as  many  alias  summonses  as  may  l)e  demanded 
by  the  plaintiff. 

The  sunmions  in  a  Ju.stice-Court  action  may  be  .served  l)y 
a  Sheriff  or  Constable  of  any  of  the  counties  of  this  State,  or 
by  any  male  resident  over  the  age  of  twenty-one  years,  not  a 
party  to  the  suit,  and  within  the  county  wliere  the  action  is 
brought,  or  it  may  be  served  l»y  publication.  When  a  .sum- 
mons is  issued  by  a  Justice  of  the  Peace  for  service  out  of  the 
county  i)i  which  it  was  issued,  the  summons  shall  have  attached 
to  it  a  certificate,  under  .seal  by  the  County  Clerk  of  such  coun- 
ty, to  the  effect  that  the  person  issuing  the  same  was  an  acting 
Justice  of  the  Peace  at  the  date  of  the  summon.s. 


t  :} 


Chap.  (J] 


California. 


23 


ten 
r  in 
ve.l 

ous : 


•led 


CHAPTER  VI. 
FORM  OF  CIVIL  ACTIONS— PLEADINGS. 

There  i.s  in  this  State  but  one  form  of  civil  actions  for  the 
enforcement  or  protection  of  private  rights  and  the  redress  or 
prevention  of  private  wrongs. 

In  such  action  the  party  complaining  is  known  as  the  plain- 
tirt"  and  the  adverse  party  as  the  defendant. 

Pleadings. 

Pleadings  are  the  formal  allegations  by  the  parties  of  their 

respective  claims  and  defenses,  for  the  judgment  of  the  Court. 

The  only  pleadings  allowed  on  the  part  of  the  plaintiti"  are — 

1.  The  complaint. 

2.  The  deuiurrer  to  the  answer. 

•}.     Demurrer  and  answer  to  a  cross-complaint. 
Those  allowed  on  the  part  of  defendant  are  — 

1.  The  demurrer  to  the  complaint. 

2.  The  answer. 

.'i.     Cross-complaint. 

A  denuirrer  raises  an  issue  of  law. 

An  answer  raises  an  issue  of  fact. 

An  issue  of  law  is  tried  by  the  (.'ourt. 

An  issue  of  fact  is  tried  by  a  jury,  unless  a  jury  trial  is 
waived. 

The  complaint  must  contain  a  concise  statement,  in  writing, 
of  the  facts  constituting  the  cause  of  action. 

In  the  Justice  Court  a  copy  of  the  account,  note,  bill,  bond, 
or  instrument  upon  which  the  action  is  based,  is  sufficient. 

The  plaintirt" may  unite  several  causes  of  action  in  \^\\C:  same 
complaint  where  they  all  arise  out  of  — 

1.  Contracts,  express  or  implied. 

2.  Claims  to  recover  specific  real  propert}',  with  or  with- 
out damafie.sfor  the  withholding  thereof,  or  for  waste  committed 
thereon,  and  the  rents  and  profits  of  the  same. 


24 


California. 


[Part  :i 


;i.  Claims  to  recover  specific  personal  property,  with  or 
without  <laiiiages  for  tiie  withholding'  thereof. 

4.  Claims  against  a  trustee  by  virtue  of  a  contract  or  by 
operation  of  law. 

5.  Injuries  to  character. 

0.  Injuries  to  person. 
7.     Injuries  to  property. 

The  causes  of  action  so  unite<l  nnist  all  belong  to  one  only 
of  these  classes,  and  must  atlect  all  the  parties  to  the  action, 
and  nut  require  ditibrent  places  of  trial,  and  must  be  .separately 

stated. 

The  defendant  may  demur  to  the  complaint  within  the  tinie 
reipiired  in  the  sunnnons  to  answer,  when  it  appears  upon  he 
face  thereof,  either  — 

1.  That  the  Court  has  no  jurisdiction  of  the  person  of  the 
defendant,  or  the  subject  of  the  action:  or, 

2.  That  the  plaintifi"  has  not  legal  capacity  to  sue ;  or, 

il  That  there  is  another  action  pending  between  the  same 
parties  for  the  same  cause  ;  or, 

4.  That  there  is  a  defect,  or  misjoinder,  of  parties  plaintifi" 
or  defendant ;  or, 

.5.  That  .several  causes  of  action  have  been  improperly  uni- 
ted ;  or, 

G.  That  the  complaint  does  not  state  facts  sufficient  tt) 
constitute  a  cau.se  of  action  ;  or, 

7.  That  the  complaint  is  ambiguous,  unintelligible,  or  un- 
certain. 

Unless  the  demurrer  distinct!}'  specify  the  grounds  upon 
which  any  of  the  objections  to  the  complaint  are  taken,  it  may 
be  disregariled. 

The  defendant  may  demur  and  answer  at  the  same  time. 

The  answer  of  the  defendant  .shall  contain  — 

1.  A  general  or  specific  denial  of  the  material  allegations 
of  the  comi)laint  controverted  by  the  defendant. 

2.  A  statement  of  any  new  matter  constituting  a  rlofen.se 
or  counter  claim.  If  the  complaint  be  verified,  the  denial  of 
each  allegation  controverteil  nuist  be  specific,  and  be  made  pos- 


Ml. 


Clmp.  G] 


CALU'OKNIA. 


2.-) 


l.v 


itively,  or  according  to  the  infornmtion  and  bolicf  of  tlie  do- 
fcndant.  If  the  defendant  has  no  information  or  l)elicf  upon 
the  suliject  sufiicient  to  enable  hiin  to  answer  an  allegation  of 
the  complaint,  he  may  so  state  in  his  answer,  and  place  his  de- 
nial on  that  ground.  If  the  complaint  be  not  verified,  a  general 
denial  is  sufiicient,  but  only  puts  in  issue  the  material  allega- 
tions of  the  complaint. 

The  counter-claim  above  mentioned  must  be  one  existing  in 
favor  of  a  defendant,  and  against  a  plaintiff,  between  whom  a 
several  judgment  might  be  had  in  the  action,  and  arising  out  of 
one  of  the  following  causes  of  action  : 

1.  A  cause  of  action  arising  out  of  the  transaction  set  forth 
in  the  complaint  as  the  foundation  of  the  plaintiff's  claim,  or 
connected  with  the  subject  of  the  action. 

2.  In  an  action  arising  upon  contract ;  any  other  cause  of 
action  arising  upon  contract,  and  existing  at  the  commencement 
of  tlu'  action. 

If  the  defendant  omit  to  set  up  a  counter-claim  arising  out 
of  the  transaction  set  forth  in  the  complaint  as  the  foundation 
of  the  plaintiff's  claim,  or  connected  M'ith  the  subject  of  the 
action,  neither  he  nor  his  assignee  can  afterwards  maintain  an 
action  against  the  plaintiff  therefor. 

When  cross-ilemands  have  existed  between  persons  under 
such  circumstances,  that  if  one  had  brought  an  action  against 
tlu'  other,  a  counter-claim  could  have  been  set  up,  the  two  de- 
mands shall  bo  deemed  compensated  so  far  as  they  equal  each 
othei',  and  neither  can  be  deprived  of  the  benefit  ther  >)i:  oy  the 
assignment  or  death  of  the  other. 

The  plaintiff  may,  within  the  same  length  of  time  after  the 
service  of  the  answer,  as  the  defendant  is  allowed  to  answer 
after  service  of  summons,  denuir  to  the  answ."!r  of  the  defend- 
ant, or  to  one  or  more  of  the  several  defenses  or  counter-claims 
set  up  in  the  answer. 

The  demurrer  may  be  taken  on  one  or  more  of  the  follow- 
ing grounds: 

1.  That  .several  causes  of  counter-claims  have  been  impro])- 
erly  joined. 


26 


California. 


[Part  :\ 


I  ill 


2.  That  the  answer  <loo.s  not  .state  facts  .sutHcient  to  con- 
stitute a  (let'enso  or  counter-claim. 

3.  That  the  answer  is  anibij,Mious,  nnintolli^'ihh'  or  un- 
certain. 

It  is  not  necessary  for  a  party  to  set  forth  in  a  pleudinf,' 
the  items  of  an  account  therein  aHef,'«'<l;  hut  he  must  «h;liver 
to  the  adverse  party,  witliin  five  clays  after  a  demand  thereof, 
in  writing,  a  copy  of  the  account,  or  Ije  precluded  from  giving 
evidence  thereof. 

Pleadings  may  be  amended. 

Verification  of  Pleadings. 

Every  pleading  must  be  subscril»ed  by  the  party  or 
attorney;  and  when  the  complaint  is  verified  the  answer  i 
be  verified,  unless  an  admission  of  the  truth  of  the  complaint 
might  subject  the  party  to  a  criminal  prosecution;  or  unless  an 
officer  of  the  State,  in  his  official  capacity,  is  defendant.  In 
all  cases  of  the  verification  of  a  pleailing,  the  affidavit  of  the 
party  must  state  that  the  same  is  true  of  his  own  knowledge, 
except  as  to  the  matters  which  are  therein  stated  on  his  infor- 
mation or  belief,  and  as  to  those  matters  that  he  believes  it  to 
be  true;  and  where  a  pleading  is  verified  it  nuist  be  by  the 
affidavit  of  a  party,  unless  the  parties  are  absent  froni  the 
county  where  the  attorney  resides,  or  from  some  cause  unable 
to  verify  it,  or  the  facts  are  within  the  knowledge  of  his  attor- 
ney or  other  person  verifying  the  same.  When  the  pleading  is 
verified  by  the  attorney,  or  any  other  person  except  one  of  the 
parties,  he  must  set  forth  in  the  affidavit  the  reason  why  it  is 
not  made  by  one  of  the  parties.  When  a  corporation  is  a  party, 
the  verification  can  be  made  bv  an  officer  thereof. 

Provisions  in  Justices'  Courts. 

Pleadings  in  Justices'  Courts  are  not  required  to  lie  in  any 
particular  form,  but  must  l»e  such  as  to  enable  a  ))erson  of  com- 
mon understanding  to  know  what  is  intended. 

May — except  the  complaint — be  oral  or  in  writing. 


Chap.  01 


California. 


27 


c'on- 


uii- 


iilinj^'  is 


Not  to  be  verified. 

If  in  writin<.^  must  be  filed  witli  tlie  Justice. 

If  oral,  an  entry  of  their  substance  nuist  be  made  in  the 
docket. 

The  defendant  may,  at  any  time  before  answering,  demur 
to  the  complaint. 

The  answer  may  contain  a  denial  of  any  or  all  of  the  ma- 
terial facts  stated  in  the  complaint,  which  the  defendant  believes 
to  be  untrue,  and  also  a  statement,  in  a  plain  and  direct  man- 
ner, of  any  other  facts  constituting  a  tlefense  or  counter-claim, 
upon  which  an  action  might  be  brought  by  the  defendant 
against  the  plaintiff  in  a  Justice's  Court. 

If  the  defendant  omit  to  set  up  a  counter-claim  in  the  cases 
just  mentioned,  neither  he  nor  his  assignee  can  afterward 
maintain  an  action  against  the  plaintifi'  therefor. 

When  the  answer  contains  new  matter  in  avoidance,  or  con- 
stituting a  defense  or  a  counter-claim,  the  plaintiti' may,  at  any 
time  before  the  trial,  <lemur  to  the  same  for  insufficiency,  stat- 
ing therein  the  grounds  of  such  demurrer. 

The  proceedings  on  demurrer  are  as  follows : 

1.  If  the  demurrer  to  the  complaint  is  sustained,  the  plain- 
titi' may,  within  such  time,  not  exceeding  two  days,  as  the 
Court  allows,  amend  his  complaint. 

2.  If  the  demurrer  to  the  complaint  is  overruled,  the  de- 
fendant may  answer  forthwith. 

3.  If  the  demurrer  to  an  answer  is  sustained,  the  defendant 
may  amend  his  answer  within  such  time,  not  exceeding  two 
days,  as  the  Court  may  allow. 

4.  If  the  demurrer  to  an  answer  is  overruled,  the  action 
must  proceed  as  if  no  demurrer  had  been  interposed. 

Kither  party  may,  at  any  time  before  the  conclusion  of  the 
trial,  amend  any  pleading;  but  if  the  amemlmentis  made  after 
the  issue,  and  it  appears  to  the  satisfaction  of  the  Court,  by 
oath,  that  an  adjournment  is  necessary  to  the  adverse  party  in 
consequence  of  such  amendment,  an  adjournment  must  l)e 
granted.  The  Court  may  also,  in  its  discretion.,  when  an  ad- 
journment be  rendered  necessary,  require  as  a  condition  to  the 


i 


i  'l 


28 


California. 


[Part  8 


allowance  of  such  a-viendment,  made  after  issue  joined,  the  pay- 
ment of  cost  to  the  adverse  party,  to  be  fixed  by  the  Court,  not 
exceeding  twr^nty  dollars.  The  Court  may  also,  on  such  terms 
as  mr.y  bu  just,  and  on  payment  of  costs,  relieve  a  party  from 
a  judgment  by  a  default  taken  against  him  by  his  mistake,  in- 
advertence, .surprise,  or  excusable  neglect;  but  the  application 
for  such  relief  must  be  made  within  ten  days  after  the  entry 
of  the  judgn)ent,  and  upon  an  affidavit  showing  good  cause- 
therefor. 

When  a  pleading  is  amended,  the  adverse  party  may  answer 
or  demur  to  it  within  .such  time,  not  exceeding  two  days,  as  the 
Court  mav  allow. 


ill 


CHAPTER  VII. 

ATTACHMENTS. 

The  plaintitt',  at  the  time  of  is,suing  the  summons,  or  at  any 
time  afterward,  may  have  the  prop(!rty  of  tho  defendant  ut- 
tachetl  as  security  for  the  satisfaction  of  anj'  judgment  that 
may  be  recovered,  unless  the  defendant  gives  security  to  pay 
such  judgment,  in  the  following  ca.ses: 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the 
direct  payment  of  money,  wnere  tlie  contract  is  made  or  is  pay- 
able in  this  State,  and  is  not  secured  by  any  mortgage  or  lien 
upon  real  or  personal  property,  or  any  pledge  of  personal  pi-op- 
erty;  or  if  originally  so  .secured,  such  security  has,  witlwmt 
any  act  of  the  plaintiff',  or  the  person  to  whom  such  .security 
was  given,  become  valueless. 

2.  In  an  action  upon  a  contract,  express  or  implied,  against 
a  defendant  not  residing  in  this  State. 

In  Justices'  Courts  the  writ  to  attach  the  property  of  the 
defendant  must  be  issued  at  the  time  of,  or  after  issuing  sum- 
mons, and  before  answer. 


'art  3 


Chap.  7] 


California. 


:^0 


e  pay- 

rt,  not 

terms 

y  from 

ko,  in- 

ication 

entry 

cause 

answer 
,  as  the 


r  at  any 
lant  at- 
ent  that 
f  to  pay 

I,  for  the 
>r  is  pay- 
e  or  lien 
nal  prop- 
without 
security 

Ll,a<:ainst 

ty  of  the 
un<4  sum- 


Before  issuing  the  writ  of  attachment  the  Clerk  of  the 
Court,  or  Justice,  must  require  an  affidavit  by,  or  on  behalf  of 
the  plaintiH",  showing : 

1.  That  the  defendant  is  indebted  to  the  plaintiti'  (specify- 
inir  the  amount  of  such  indebtedness,  over  and  above  all  leaal 
set-offs  or  counter-claims)  upon  a  contract,  express  or  implieij. 
for  the  direct  payment  of  money,  and  that  such  contract  was 
made  or  is  payable  in  this  State,  and  that  the  payment  of  the 
same  has  not  been  secured  by  any  .uortgage  or  lien  upon  any 
real  or  pers  ^nal  property,  or  any  pledge  of  personal  propt-rty  : 
or  if  originally  so  secured,  that  such  security  has,  without  any 
act  of  the  plaintiti",  or  person  to  whom  the  .security  was  given, 
become  valueless ;  or, 

2.  That  the  defendant  is  indebted  to  the  plaintiti'  (specify- 
ing the  amount  of  such  indelitedness,  over  and  above  all  leiial 
set-otls  or  countei'-claims),  and  that  the  defendant  is  a  non-resi- 
dent of  the  State;  and, 

'i.  That  the  ati.ichment  is  not  sought  and  the  action  is  not 
prost.'cutcd  to  hinder,  delay,  or  defraud  any  creditor  of  the  de- 
fendant. 

The  Clerk  or  Justice  must  also  riMpiire,  before  issuing  the 
writ,  a  written  undertaking,  on  the  \M\vt  of  the  plaintiti' (in  tin 
Superior  Court,  in  a  sum  of  not  less  than  two  hundred  dollars 
anil  no*  exceeding  the  amount  claimed  by  the  plaintiti';  and  in 
the  Justices'  Court  in  a  sum  not  less  than  lifty  <!ollars,  and  n<it 
more  than  three  hundred  dollars),  by  two  or  more  suliicient 

■'!'      sureties,  tf)  tlie  eti'ect  tliat  if  the  defene   nt  recover  judunient. 

:%  the  plaintitf  will  pay  all  costs  that  m;iy  be  awarded  to  the  de- 
fendant, and  all  danuiges  which  he  may  sustain  by  reason  of 
the  attachment,  not  exceeding  the  sum  specified  in  the  under- 
taking. 

The  ihfendant  may  exce|)t  to  the  sufficiency  of  the  sureties. 
Th"  writ  of  attachment  in  Superior-Court  actions  must  be 
ilirecteti  to  the  Sheriff  of  any  county  in  which  propert)'  of  such 
defendant  may  be  ;  in  -lustice-Court  actions  to  the  Sheriff  of 
anv  eouiitv  in  whieii  tlu'  in'oi)ertv  of  the  d(>fendant  mav  be  ;  or 
to  tin'  Slieritf  or  Constable   in  the  county   where  the  suit   is 


California. 


[Part  :i 


brought;  and  must  require  him  to  attach  and  safelj' keep  all 
the  property  of  the  defendant  within  his  county,  not  exempt 
from  execution,  or  so  much  thereof  as  may  lie  sufficient  to  sat- 
isfy the  plaintiff's  demand — the  amount  of  which  must  be 
stated  in  conformity  with  the  complaint,  unless  the  defendant 
rrives  him  security,  bv  the  undertakingof  at  least  two  sufficient 
sureties,  in  an  amount  sufficient  to  satisfy  such  demand,  besides 
costs,  or  in  an  amount  equal  to  the  value  of  the  property  which 
has  been,  or  is  about  to  be,  attached.  Several  writs  may  be 
issued  at  the  same  time  to  the  Sheriffs  of  different  counties. 

The  writ  of  attachment  nuist  be  executed,  without  delay, 
by  the  Sheriff  to  whom  it  is  directed  : 

1.  Real  property,  standing  upon  the  records  of  the  county 
in  the  name  of  the  defendant,  nuist  be  attached  by  filing  with 
the  Recordei-  of  the  county,  a  copy  of  the  writ,  together  with  a 
description  of  the  property  attached,  and  a  notice  that  it  is  at- 
tached, and  by  leaving  a  similar  copy  of  the  writ,  description 
aiul  notice  with  an  occupant  of  the  property,  if  there  is  one  ; 
if  not,  then  by  posting  the  same  in  a  conspicuous  place  on  the 
property  attached. 

2.  Real  property,  or  an  interest  therein,  biilonging  to  the 
defendant,  and  held  by  any  other  person,  or  standing  on  the 
records  of  the  county  in  the  name  of  any  other  person,  nnist  be 
attached  by  filing  with  the  Recorder  of  the  county  a  ropy  of 
the  writ,  together  with  a  description  of  the  property,  and  a  no- 
tice that  such  real  property  and  any  interest  of  the  <lefen(hint 
therein,  held  l)y  or  standing  in  the  name  of  such  otlier  person 
(naming  him),  are  attached  ;  and  l»y  leavinj;  v/ith  *he  occupant, 
if  any,  and  with  such  other  person  or  his  agent,  if  known  anil 
within  the  county,  or  at  the  residence  of  either,  if  within  the 
ccmnty,  a  copy  of  the  writ,  with  a  similar  description  an<l  un- 
tice.  If  there  is  no  occupant  of  the  pr()pi»"ty,  a  copy  of  tin- 
writ,  together  with  such  de.scri]itioii  and  noticf,  nuist  be  posted 
in  a  consjiicuous  phicc  upon  the  piopcrty.  'I'hf  liccorder  must 
index  such  attachment  when  lilcd,  in  the  names  both  of  tin- 
defendant  an<l  of  the  person  by  wliom  the  property  is  held,  or 
in  whose  name  it  stands  on  the  records. 


d 


Chap.  7] 


California. 


81 


.*}.  Personal  property,  capa1)le  of  manual  delivery,  must  lie 
attachetl  by  takin<^'  it  into  custody. 

4.  Stocks  or  shares,  or  interest  in  stocks  or  shares  of  any 
corporation  or  company,  must  be  attached  by  leaving  with  the 
President  or  other  head  of  the  same,  or  the  Secretary,  Cashier, 
or  other  managing  Agent  thereof,  a  copy  of  the  writ,  and  a 
notice  stating  that  the  stock  or  interest  of  the  defendant  is  at- 
tached, in  pursuance  of  such  writ. 

.').  Debts  and  credits,  and  other  personal  property  not  ca- 
pable of  manual  delivery,  must  be  attached  by  leaving  with  the 
person  owing  such  debts,  or  having  in  his  possession,  or  under 
his  control,  such  credits  and  other  personal  property,  or  with 
liis  agent,  a  copy  of  the  writ,  and  a  notice  that  the  debts  owing 
by  him  to  the  defendant,  or  credits  and  any  other  personal 
property  in  his  possession  or  under  his  control,  belonging  to 
the  defeiKlant,  are  attached  in  pursuance  of  such  writ. 

Upon  receiving  information,  in  writing,  from  the  plaintiff' 
or  Ins  attorney,  that  any  person  has  in  his  possession,  or  under 
his  control,  any  credits  or  other  per>  il  property  belonging  to 
the  defendant,  or  is  owing  any  debt  to  tlie  defendant,  the  Sheriff 
must  serve  upon  such  person  a  copy  of  tin-  wri*  and  a  notice 
that  such  credits  or  other  property  or  debts,  as  the  case  mav 
be,  are  attached  in  pursuance  of  such  writ. 

All  persons  having  in  their  possession  or  under  their  control, 
any  cretlits  or  other  personal  property,  belonging  to  the  def.iid- 
ant,  or  owing  any  debts  to  the  defendant  at  the  time  of  .siivice 
upon  them  of  a  copy  of  the  writ  and  notice,  as  above  directed, 
shall  be,  unless  such  ^)r()j)erty  be  delivered  up  or  transferred 
or  such  debts  be  paid  to  the  Sheriff,  liable  to  the  plainti'' 
the  amount  of  such  credits,  projx'rty,  or  debts,  until  the  attach- 
ment be  discharged,  or  any  judgment  recovered  by  him  be 
satisfied. 

Any  person  owing  debts  to  the  defendant,  or  having  in  his 
possession,  or  tuider  his  control,  any  credits  or  other  personal 
property  belonging  to  the  defen<lant,  may  be  required  to  attend 
bi'fori'  the  Court  or  Judge,  or  a  Referee  appointed  by  the  Comt 


H-2 


California. 


[Part  :} 


or  Judge,  and  be  examined  on  oath  respecting  the  same.  Tlie 
defendant  may  also  be  reijuired  to  attend  for  tiio  purpose  of 
giving  information  respecting  his  property,  and  may  be  exam- 
ined on  oath.  The  Court  or  Judge  may,  after  such  examin- 
ation, order  personal  property  capable  of  manual  delivery,  to  be 
delivered  to  the  Sherili'  on  such  terms  as  may  be  just,  having 
reference  to  any  liens  thereon,  or  anj'  claims  against  the  same, 
and  a  mcmoramlum  to  be  given  of  all  other  personal  property, 
containing  the  amount  and  description  thereof. 

Perishable  i)roperty  attached  must  be  .sold  by  the  Sheriti'; 
the  proceeds,  and  other  property  attached,  must  be  retained  l)y 
him  to  answer  any  judgment  that  may  bo  recovered  in  the 
action,  unless  sooner  subjected  to  execution  upon  another  judg- 
ment recovered  previous  to  the  is.suing  of  the  attachment. 
Debts  and  credits  attached  may  be  collected  by  him,  if  the 
same  can  be  done  without  suit.  The  Sheritf s  receipt  is  a  .suffi- 
cient discharge  for  the  amount  paid. 

Whenever  property  has  been  taken  by  an  officer  under  a 
writ  of  attachment,  and  it  is  njade  to  appear  satisfactorily  to 
the  Court,  or  a  Judge  thereof,  tiiat  the  interest  of  the  parties 
to  the  action  will  be  subs,  rved  l)y  a  sale  thereof,  the  Court  or 
Judge  may  order  such  property  to  be  sold  in  the  same  manner 
as  property  is  sol<l  under  an  execution,  and  the  proceeds  to  be 
ileposited  in  the  Court,  to  al'iile  the  judgment  in  the  action. 

Whenever  the  defendant  has  appeared  in  tlie  action,  he 
may,  upon  reasonable  notice  t(»  the  plaintitl'.  apply  to  the  Court 
in  which  tlie  action  is  pending,  of  to  the  .ludge  thereof,  for  an 
order  to  discharge  the  attaehiiient.  wholly  or  in  part:  and  upon 
the  execution  of  the  uinh-rtaking  mentioned  hereafter,  an  onler 
may  be  made,  releasing  from  the  operation  of  the  attachment 
any  or  all  of  the  property  attached ;  and  all  the  property  so 
released,  and  all  of  the  proceeds  (jf  t  ,e  sales  thereof,  must  be 


delivered  to  the  defendant,  upon  the  justification  of  the  sureties 
on  the  midertaking,  if  re«niired  l)y  thr  plaintitl". 


Before  making  Mieh  order,  the  (  '.jurt  or  .lud' 


re  must  re(|uire 


an  undertaking  on  behalf  of  the  defendant,  by  at  least  t 


wo 


\\vt  -l 


Chap.  7] 


California. 


•io 


The 
)Ose  of 
L'xam- 
ciuiiin- 
r,  to  be 
havins:? 
L'  same, 
)perty, 

SlieriH': 
ine<l  l)y 
in  the 
r  jutlg- 
C'hiuent. 
I,  if  the 
;  a  sllffi- 

umler  a 
torily  to 
parties 
Court  or 
!  manner 
Dils  to  he 
ction. 
ction.  he 
he  Court 
of,  for  an 
anil  up"M 
,  an  ovtlir 
,taehnu'nt 
opei-ty  so 
".  must  be 
le  sureties 

ist  re(iuirt' 
k'ast  two 


sureties,  rc^'^ents  and  freeholders,  or  householders,  in  the  State, 
to  the  effect  that,  in  case  the  plaintiff'  recover  judgment  in  the 
action,  the  defendant  will,  on  demand,  re-deliver  the  attached 
property  so  released  to  the  pi'oper  officer,  to  be  applied  to  the 
payment  of  the  judgment;  or,  in  default  thereof,  that  the  de- 
fendant and  sureties  will,  on  demand,  pay  to  the  plaintiff'  the 
full  value  of  the  property  released.  The  Court  or  Judge  mak- 
ing such  order  may  fix  the  sum  for  which  the  undertaking  must 
be  executed,  and  if  necessary,  in  fixing  such  sum,  to  know  the 
Value  of  the  property  released,  the  same  may  be  appraised  Ijy 
one  or  more  disinterested  persons,  to  be  appointed  for  that  pur- 
pose. The  sureties  may  be  re([uired  to  justify  before  the  Court 
or  Judge,  and  the  property  cannot  be  release  1  without  their 
justification,  if  the  same  be  required. 

The  defendant  may  also,  at  any  tiuie,  either  before  or  after 
the  release  of  the  attacheil  property,  or  before  an}-  attaclnnent 
shall  have  been  actually  levied,  apply  on  motion,  upon  reason- 
able notice  to  the  plaintiff,  to  the  Court  in  which  the  action  is 
brought,  or  to  the  Judge  thereof,  that  the  writ  of  attachment 
be  discharged,  on  the  grouml  that  the  same  was  improperly  or 
irregularly  issued. 

If,  upon  such  application,  it  satisfactorily  appears  that  the 
writ  of  attachment  was  Improperly  or  irregularly  issued,  it 
must  be  discharged. 


CHAPTER  VIII. 

CLAIM  AND  DELIVERY  OF  PERSONAL 
PROPERTY. 

The  plaintiff  in  an  action  to  recover  the  possession  of  per- 
sonal jiroperty  may,  at  the  tinn'  of  issuing  the  summons,  <»r  at 
any  time  before  answer,  claim  the  delivery  of  such  property  to 
him. 


34 


California. 


[Part  8 


Where  a  delivery  is  claimed,  an  affidavit  must  be  made  by 
the  plaintiti',  or  by  some  one  on  his  behalf,  showing: 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed 
(particularly  describing  it),  or  is  entitled  to  the  possession 
thereof. 

2.  That  the  property  is  wrongfully  detained  by  the  de- 
fendant. 

8.  The  alleged  cause  of  the  detention  thereof,  according  to 
his  best  knowledge,  information  and  belief. 

4.  That  it  has  not  been  taken  for  a  tax,  a.ssessment  or  fine, 
pur.suant  to  a  .statute ;  or  seized  under  an  execution  or  an  at- 
tachment against  the  property  of  the  plaintiff;  or  if  so  seized, 
that  it  is  ])y  statute  exempt  from  seizure. 

5.  The  actual  value  of  the  property. 

The  plaintiff  or  his  attorney  may,  thereupon,  by  an  indorse- 
ment in  writing  upon  the  affi<lavit,  require  the  Sheriff  of  the 
county  where  the  property  claimed  may  be,  to  take  the  same 
from  the  defendant. 

Upon  a  receipt  of  the  affidavit  and  notice  with  a  written 
undertaking,  executed  by  two  or  iiiore  sufficient  sureties,  ap- 
proved by  the  Sheriff,  to  the  effect  that  they  are  bound  to  the 
defenilant  in  double  the  value  of  tiic  property,  as  stated  in  the 
affidavit  for  the  prosecution  of  the  action  for  the  return  of  the 
property  to  the  defendant— if  return  thereof  be  adjudged,  and 
for  the  payment  to  him  of  such  sum  as  may  from  any  cause  be 
recovered  against  the  plaintiff —the  Sheriff  must  forthwith  take 
the  pi-operty  described  in  theaffi.davit,  if  it  be  in  the  possession 
of  the  defendant  or  his  agent,  and  retain  it  in  his  custody. 
The  Sheriff  must,  without  delay,  serve  on  the  defendant  a  copy 
of  the  affidavit,  notice  and  undertakin<>-. 

The  defendant  may,  within  two  days  after  the  service  of  a 
copy  of  the  affidavit  and  un.iertaking,  give  notice  to  the  Sheriff 
that  he  excepts  to  the  sufficiency  of  the  sureties.  If  he  fails  t(» 
do  so,  he  is  dcenicrl  to  have  waived  ,il|  objections  in  them. 
When  the  def.Midant  excei)ts,  the  sureties  must  justify  ,„i  notice 
before  the  Judge  or  County  Clerk  ;  and  the  Slieriff  is  responsi- 


Chap.  8] 


California. 


35 


ble  for  the  sufficiency  of  the  sureties  until  the  objection  to  them 
is  either  waived  or  until  they  ju.stify. 

At  any  tinie  before  the  delivery  of  the  property  to  the  plaint- 
itf'  the  defendant  may,  if  he  do  not  except  to  the  sureties  of  the 
plaintiti',  retiuire  the  return  thereof,  upon  giving  to  the  Sheriff 
a  written  undertaking,  executed  by  two  or  more  .sufficient  sure- 
ties, to  the  effect  that  they  are  bound  in  double  the  value  of 
the  property,  as  stated  in  the  affidavit  of  the  plaintiff,  for  the 
deliver}-  thereof  to  the  plaintiff,  if  such  delivery  be  adjudged  : 
and  for  the  payment  to  him  of  such  sum  as  may,  for  any  cause, 
be  recovered  against  the  defendant.  If  a  return  of  the  proper- 
ty V>e  not  so  re(]uired  within  live  days  after  the  taking  and 
service  of  notice  to  the  defendant,  it  must  be  delivered  to  the 
plaintiff,  unless  claimed  liy  a  third  party,  as  hereafter  set  forth. 
The  defendant's  sureties,  upon  notice  to  the  plaintiff  of  not  less 
than  two  or  more  than  five  days,  must  justify  before  a  Judge 
or  County  Clerk ;  and  upon  such  justification  the  Sheriff  must 
deliver  the  property  to  the  defendant.  The  Sheriff  is  responsi- 
1)1l'  for  the  defendant's  sureties  until  they  justify,  or  until  the 
justification  is  completed  or  waived,  and  may  retain  the  property 
until  that  time ;  if  they,  or  others  in  their  place,  fail  to  justify 
at  the  time  and  place  appointed,  he  must  deliver  the  property 
to  the  plaintiff. 

If  the  property  taken  be  claimed  by  any  other  person  than 
the  defendant  or  his  agent,  and  such  person  make  affidavit  of 
his  title  t'.ereto,  or  right  to  the  possession  thereof,  .stating  the 
grounds  of  such  title  or  right,  and  serve  the  .same  upon  the 
Slieriff,  the  Sheriff  is  not  bound  to  keep  the  property  or  deliver 
it  to  the  plaintiff,  unless  the  plaintiff,  on  demand  of  him,  or  his 
a^cnt,  indenniify  the  Sheriff  against  such  claim,  by  an  under- 
taking, by  two  sufficient  sureties;  and  no  claim  to  such  prop- 
erty by  ajiy  othe'-  person  than  the  defendant  or  his  agent  is 
valid  against  the  Shcritf,  unless  so  made. 

The  provisions  contained  in  this  chapter  are  applicable  to 
cases  in  Justices'  Courts,  the  won)  "Constable"  being  .substi- 
tute<l  for  "  Sheriff,"  and  '  Justice  "  for  "  Judge." 


m 

ill 


4!i 


'4 

I 


f 

i  il 


36 


California. 


[Part  :)■ 


CHAPTER  IX. 


ARREST  AND  BAIL. 


The  defendant  may  be  arrested  in  a  civil  action  in  the  fol- 
lowing cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages  on 
a  cause  of  action  arising  upon  contract,  express  or  implied, 
when  the  defendant  is  about  to  <lepart  from  the  State,  with 
intent  to  defraud  his  creditors. 

2.  In  an  action  for  a  tine  or  penalty,  or  for  money  or 
property  embezzled,  or  fraudulently  misapplied,  or  converted  to 
his  own  use,  by  a  public  officer,  or  an  officer  of  a  corporation, 
or  an  attorney,  factor,  broker,  agent,  or  clerk,  in  the  course  of 
his  employment  as  such  ;  or  by  any  other  person  in  a  fiduciary 
capacity ;  or  for  misconduct  or  neglect  in  office,  or  in  a  profes- 
sional employment ;  or  for  a  wilful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal  prof)- 
erty  unjustly'  detained,  when  the  property  or  any  part  thereof 
has  been  concealed,  removed,  or  disposeil  of,  to  pi'event  its  being 
found  or  taken  by  tlie  Sheriff'. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  con- 
tracting the  debt  or  incurring  the  obligation  for  which  the  ac- 
tion is  brought;  or  in  concealing  or  disposing  of  the  property, 
for  the  taking,  detention,  or  conversion  of  which  the  action  is 
brought. 

5.  When  the  defendant  lias  removed  or  disposed  of  his 
property,  or  is  about  to  do  so,  with  intent  to  defraud  his 
creditors. 

The  order  of  arrest  is  made  upon  affidavit  of  the  plaintitf,  or 
some  other  person,  that  a  sufficient  cause  of  action  e.xists,  and 
the  case  is  one  of  those  mentioned  above. 


Chap.  9] 


Califounu. 


37 


,    M 


Before  making  the  order  of  arrest,  the  Judge  must  require 
a  written  undertaking  on  tlio  part  of  the  plaintiff,  witli  sureties 
in  an  amount  to  be  fixed  by  the  Judge,  which  must  be  at  least 
five  hundred  dollars,  to  the  effect  that  the  plaintiff'  will  pay  all 
costs  which  may  be  adjudged  to  the  defendant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  arrest,  if  the  same  be 
wrongful,  or  without  sufficient  cause,  not  exceeding  the  sum 
specified  in  the  undertaking. 

In  the  Justices'  Court  the  defendant  may  be  arrested  in  a 
civil  action,  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of  money  or  damages,  on 
a  cause  of  action  arising  upon  contract,  express  or  implied, 
when  the  defendant  is  about  to  depart  from  the  State,  with  in- 
tent to  defraud  his  creditors. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or 
property  embez^;led  or  fraudulently  misapplied,  or  converted 
to  his  own  use,  by  one  who  received  it  in  a  fiduciary  capacity. 

3.  When  the  defendant  has  been  guilty  of  a  fraud  in  con- 
tracting  the  debt,  or  incurring  the  obligation  for  which  the 
action  was  brought. 

4.  When  the  defendant  has  removed,  concealed,  or  disposed 
of  his  property,  or  is  about  to  do  so,  with  intent  to  defraud  his 
creditors. 

No  female  can  be  arrested  in  an  action  in  the  Justices' 
Court.  Before  an  order  of  arrest  can  be  made,  the  party  ap- 
plying must  prove  to  the  satisfaction  of  the  Justice,  bj'  the 
affidavit  of  himself,  or  some  other  person,  the  facts  upon  which 
the  application  is  founded,  and  the  plaintiff  nmst  execute  and 
deliver  to  the  Justice  a  written  undertaking  in  the  sum  of  three 
hundretl  dollars,  with  sufficient  sureties,  to  the  effect  that  the 
plaintiff"  will  pay  all  costs  that  may  be  adjudged  to  the  defend- 
ant, and  all  damages  which  he  may  sustain  by  reason  of  the 
arrest,  if  the  same  be  wrongful,  or  without  sufficient  cause,  not 
exceeding  the  sum  specified  in  the  undertaking. 


,1  p 


m 


I  ■ 


i " 


88 


California. 


[Part  8 


CHAPTER  X. 


1^  pi 


INJUNCTIONS. 

An  injunction  is  a  writ  or  order  requiring'  a  [ler.son  to  re- 
frain from  a  particular  act.  It  may  be  granted  in  the  follow- 
ing cases : 

1.  When  it  appears  by  the  complaint  that  the  plahititi'  is 
entitled  to  the  relief  demanded,  and  such  relief,  or  any  prf)of 
thereof,  consists  in  restraining  the  connnission  or  continuance 
of  the  act  complained  of,  either  for  a  limited  period  or  per- 
petually. 

2.  When  it  appears  by  the  complaint  or  affidavit,  that  the 
commission  or  continuance  of  some  act  during  the  litigation 
would  produce  waste,  great  or  irrepairable  injury  to  the 
plaintiff. 

8.  When  it  appears,  during  the  litigation,  that  the  defend- 
ant is  doing  or  threatens,  or  is  about  to  do,  or  is  procuring  or 
is  suffering  to  be  done,  some  act  in  violation  of  the  plaintiff's 
rights  respecting  the  subject  of  the  action,  and  tending  to  ren- 
der the  judgment  ineffectual. 


CHAPTER  XI. 
JUDGMENTS  AND  JUDGMENT  LIENS. 

A  judgment  is  the  Hnal  determination  of  the  rights  of  the 
parties  in  an  action  or  proceeding. 

A  judgment  may  be  given  for  or  against  one  or  nu  re  of 
several  plaintiffs,  and  for  or  against  one  or  more  of  several  de- 
fendants ;  and  it  may,  when  the  justice  of  the  case  re(juires  it. 


w 


Chap.  1 1] 


California. 


;}() 


tluturmino  the  ultimate  rights  of  tlie  parties  on  each  side,  as 
In'twcen  themselves. 

In  an  action  against  several  defendants,  the  Court  may,  in 
its  discretion,  render  judgment  against  one  or  more  of  tlu-in, 
leaving  the  action  to  proceed  against  the  others,  whenever  a 
several  judgment  is  proper. 

The  relief  granted  to  the  plaintiff,  if  there  be  no  an.swer, 
can  not  exceed  that  which  he  shall  have  demanded  in  his  com- 
plaint; but  in  any  other  case,  the  Court  may  grant  him  any 
relief  consistent  with  the  case  made  by  the  complaint  and  em- 
braced within  the  issue. 

An  action  may  be  dismissed,  or  a  juilgment  of  non-suit  en- 
tered, in  the  following  cases  : 

1.  By  the  plaintiff  himself,  at  any  time  before  trial,  upon 
the  payment  of  costs,  if  a  counter-claim  has  not  been  made  or 
alHrmative  relief  sought  by  the  cross-complaint  or  answer  of 
defendant. 

2.  By  cither  party,  upon  the  written  consent  of  the  other. 
'.».     By  th<'  Court,  when  the  plaintiff  fails  to  appear  on  the 

trial,  ami  the  defendant  appears  and  asks  for  the  dismissal. 

4.  By  the  Court,  when,  upon  the  trial,  and  before  the  iinal 
submission  of  the  case,  the  plaintiff  abandons  it. 

.5.  By  the  Court,  upon  motion  of  the  defendant,  when, 
upon  the  trial,  the  plaintiff  fails  to  prove  a  sufficient  case  for 
the  jury. 

In  all  other  cases,  judgment  must  be  rendered  on  the  merits. 


.^V; 


^       ;| 


Judgment  upon  Failure  to  Answer. 

Judgment  may  be  had  if  the  defendant  fail  to  answer  or 
<lemur  to  the  complaint  within  the  time  specified  in  the  sum- 
mons, or  within  such  further  time  as  may  have  been  granted, 
as  follows  : 

1.  In  an  action  arising  upon  contract  for  the  recovery  of 
money  or  damages  only,  the  Clerk,  upon  application  of  the 
plaintiff,  must  enter  the  default  of  the  defendant,  and  imme- 


40 


California. 


[Part  3 


I;  i 


^Mi  j 


M 


m>^ 


(liately  thereafter  enter  jiul^'incnt  for  tlie  amount  specified  in 
the  sunnnons,  including  tiie  costs,  against  the  defendant ;  or 
against  one  or  more  of  several  defendants,  when  the  action  is 
against  two  or  more  defendants,  jointly  or  severally  liable  on  a 
contract,  and  the  summons  is  served  on  one  or  more,  and  not 
on  all  of  them  ;  in  which  case  the  plaintiff'  may  proceed  against 
the  defendants  served  in  the  same  manner  as  if  they  were  the 
only  <lefenilants. 

2.  In  other  actions,  the  Clerk  must  enter  the  default  of  the 
defendant ;  and,  thereafter,  the  plaintiff  may  apply  at  the  first 
or  any  sul»se(iuent  term  of  the  Court  for  the  relief  demanded 
in  the  complaint.  If  the  taking  of  an  account,  or  the  proof  of 
any  fact,  is  necessary  to  enable  the  Court  to  give  judgment,  or 
to  carr}'  the  judgment  into  effect,  the  Court  may  take  the  ac- 
count or  hear  the  proof;  or  may,  in  its  discretion,  order  a 
reference  for  that  purpose.  And  when  the  action  is  for  dam- 
ages, in  whole  or  in  part,  the  Court  may  order  the  damages  to 
be  assessed  by  a  jury  ;  or  if,  to  determine  the  amount  of  dam- 
ages, the  examination  of  a  long  account  be  involved,  bv  a 
reference  as  above  provided. 

3.  In  an  action  where  the  service  of  summons  was  bv 
publication,  the  plaintiff,  upon  the  expiration  of  the  time  for 
answering,  may,  upon  proof  of  the  publication,  and  that  no  an- 
swer has  been  filed,  apply  for  judgment ;  and  the  Court  must 
thereupon  require  proof  to  be  made  of  the  demand  mentioned 
in  the  complaint ;  and  if  the  defendant  be  not  a  resident  of  the 
State,  must  require  the  plaintiff"  or  his  agent  to  be  examined  on 
oath  respecting  any  payments  that  have  been  mad.-  to  the 
plaintiff,  or  to  any  one  for  his  use,  on  account  of  such  demand, 
and  may  render  judgment  for  the  amount  which  he  is  entitled 
to  recover. 


Judgment  by  Confession. 

A  judgment  by  confession  may  be  enteral  without  action, 
either  for  money  due  or  to  become  due,  or  to  secure  any  person 
against  contingent  liability  on  behalf  of  the  defendant,' or  both 


Chap.  11 J 


Califounia. 


41 


A  statement  in  writing  must  he  made,  sij^metl  by  tlie  de- 
fendant and  verified  by  iiis  oatli,  to  the  ftjllowinj,'  ett'ect : 

1.  It  must  autliorize  tlie  entry  oi  judgment  for  a  specitied 
sum. 

2.  If  it  be  for  money  due,  or  to  become  due,  it  must  state 
concisely  Uie  facts  out  of  vvliicli  it  arose,  and  show  tliat  tlie  sum 
confessed  therefore  is  justly  due,  or  to  become  due. 

8.  K  it  be  for  the  purpose  of  securing  the  plaintiff  against 
a  contingent  liability,  it  must  state  c(jncisely  the  facts  constitu- 
ting the  liability,  and  show  that  the  sum  confessed  therefor 
does  not  exceeil  the  same. 


P] 


Judgment  on  Proceedings,  Without  Action,  by 
Submission  of  a  Controversy. 

Parties  to  n  (juestion  in  difference,  which  might  be  the  sub- 
ject of  a  civil  action,  may,  without  action,  agree  upon  a  case 
containing  the  facts  upon  which  the  controversy  depends,  and 
present  a  submission  of  the  same  to  any  Court  which  would 
have  jurisdiction  if  an  action  had  been  brought;  but  it  must 
appear  by  affidavit  that  the  controversy  is  real,  and  the  pro- 
ceedings in  good  faith,  to  determine  the  rights  of  the  parties. 
The  Coui't  must,  thereupon,  hear  and  determine  the  case,  and 
render  judgment  thereon  as  if  an  action  were  pending. 

Judgment  after  Verdict. 

When  trial  by  jury  has  been  had,  judgment  must  be  en- 
tered by  the  Clerk  in  conformity  to  the  verdict,  within  twenty- 
four  hours  after  the  rendition  of  the  verdict,  unless  the  Court 
order  the  case  to  be  reserved  for  argument  for  further  consid- 
eration, or  grant  a  stay  of  proceedings. 

Upon  the  trial  of  a  (pu'stion  of  fact  by  the  Court,  its  de- 
cision must  bo  given  in  writing,  and  filed  with  the  Clerk,  with- 
in thirty  days  after  the  cause  is  submitted  for  decision. 

Judgment  upon  the  decision  must  be  entered  accordingly. 

On  a  judgment  for  the  plaintiff  upon  an  is.sue  of  law,  he 
may  proceed  as  in  the  case  of  judgment  upon  failure  to  an- 


42 


California. 


[Part  3 


.svver.  If  judginen'  '  e  for  the  tlefemlant  upon  an  issue  of  law, 
and  the  taking  of  an  account  or  the  proof  of  any  fact  be  nec- 
essary to  enable  the  Court  to  complete  the  judgment,  a  refer- 
ence may  be  ordered. 

Proceedings  against  Joint  Debtors. 

When  a  judgment  is  recover  I  against  one  or  more  of  sev- 
eral persons,  jointly  indebted  upon  an  obligation,  those  who 
were  not  originally  served  with  the  summons,  and  did  not  ap- 
pear to  the  action,  may  be  sumnjoned  to  siiow  cause  why  they 
should  not  be  bound  by  the  judgment  in  the  same  manner  as 
though  they  had  been  originally  served  with  the  summons. 

Proceedings  on  Offer  of  L>efendant  to  Comproniiae. 

The  defendant  may,  at  any  time  before  the  trial  or  judix- 
ment,  serve  upon  the  plaintiti'an  otier  to  all(»w  judgment  tc^  l»o 
taken  against  him  for  the  sum  or  property,  or  to  t'le  etfect 
therein  specified.  If  the  plaintiti*  accept  the  otter,  and  give  no- 
tice thereof  within  five  days,  he  may  file  the  oti'er,  with  proof 
of  notice  of  accoptauce,  and  the  Clerk  must  thereupon  enter 
judgment  acdrdiugly.  If  tlic  notice  of  acceptance  be  not  given, 
the  otter  is  to  be  deemed  \vith<lrawn,  and  cannot  be  given  in 
evidence  upon  the  trial;  and  if  the  plaintiff  fail  to  olitain  a 
more  favorable  judgment,  he  cannot  recover  costs,  but  must  pay 
the  defendant's  costs  from  the  tin.2  of  the  otter. 

Gold  Coin  or  Currency  Judgment. 

In  an  action  on  a  contract  or  ol)li;^ation  in  writing,  for  the 
direct  payment  of  money,  made  payable  in  a  specified  kind  of 
money  or  currency,  judgment  for  the  plaintitf.  whether  it  l)e 
default  or  after  verdict,  nmy  follow  thi;  contract  or  oldigation, 
and  be  mu<le  payable  in  r.lie  kind  of  money  or  currency  speci- 
fied therein;  and  in  all  aieti(ms  for  the  reeovcrv  of  monev.  if 
the  plaint'ft"  alleire  in  his  complaint  that  the  same  was  um'Lt- 
8too<l  and  agreed  by  tiie  respective  pwties  to  be   payable  in  a 


m 


Chap.  11] 


California. 


43 


specific  kind  of  money  or  currency,  and  this  fact  i.s  admitted  by 
the  default  of  the  defendant,  or  established  by  evidence,  the 
judgment  for  the  plaintiff  must  be  made  payable  in  the  kind  of 
money  or  currency  so  alleged  in  the  complaint ;  and  in  an  action 
against  any  person  for  the  recovery  of  money  received  by  such 
person  in  a  fiduciary  capacity,  or  to  the  use  of  another,  judg- 
ment for  the  plaintiff  must  be  made  payable  in  the  kind  of 
money  or  currency  so  received  by  sucli  person. 


Judgment  in  Replevin. 

In  an  action  to  recover  the  pos.session  of  personal  property, 
judgment  ft)r  the  plaintiff  may  be  for  the  possession  or  value 
thereof,  in  case  a  delivery  cannot  be  had,  and  tlamagos  for  the 
detention.  If  the  property  has  been  delivered  to  the  plaintiff, 
and  the  defendant  claim  a  return  thereof,  ju<lgment  for  the  de- 
fondant  may  be  for  a  return  of  the  property,  or  the  value 
t'  (.  eof,  in  case  a  return  cannot  be  had,  and  damages  for  taking 
or  withholding  tiie  .same. 


Judgment  Lien. 

From  the  time  the  judgment  is  docketed  it  becomes  a  lien 
upon  all  the  real  property  of  the  judgment  debtor,  not  exempt 
from  execution,  in  tht>  county,  owned  by  liim  at  the  time,  or 
which  he  may  aftcwards  acquire,  until  the  lien  cease.s.  The 
lien  continues  for  two  years,  unless  the  enforcement  of  the 
judgment  be  stayed  on  appeal  by  execution  of  a  sufiicient  under- 
taking, in  which  case  the  lien  of  the  judgment  ceases.  [See 
elsewhere,  how  judg'iients  in  Justice's  Court  are  made  a  lien 
upon  real  property] 

A  transcript  of  the  original  document,  certified  by  the  Clerk, 
may  be  filed  with  the  Recorder  of  ajiv  other  county ;  and  from 
th*.  time  of  the  filing  of  the  judgment  becomes  a  lien  upon  all 
tlie  real  property  of  the  judgment  debtor,  not  exempt  fiom 
execution,  m  such  county,  owned  by  him  at  he  time,  or  which 
he  may  afterward,  and  before  the  time  expires,  actjuire.  The 
lien  contitmes  for  two  years. 


44 


California. 


[Part  ;3 


' 


:  i; 


PROVISIONS  IN  JUSTICES'  COURTS. 
Judgment  by  Default. 

If  the  defendant  fail  to  appear  and  to  answer  or  demur  at 
the  time  specified  in  the  summons,  tlien,  upon  proof  of  service 
of  the  summons,  the  following  proceedings  must  be  had : 

1 .  If  the  action  is  based  upon  a  contract,  and  is  for  the 
recovery  of  money  or  damages  only,  the  Court  must  render 
judgment  in  favor  of  plaintiff  for  the  sum  specified  in  the 
sununons. 

2.  In  all  other  actions,  the  Court  nmst  hear  the  evidence 
offered  by  the  plaintitt',  and  must  render  judgment  in  his  favor 
for  such  a  sum  (not  exceeding  the  amount  stated  in  the  sum- 
mons) as  appears  by  such  evidence  to  be  just. 

In  the  following  cases  the  same  proceedings  must  be  had, 
and  judgment  must  be  rendered  in  like  manner,  as  if  the  de- 
fendant failed  to  appear  and  answer  or  demur  : 

1.  If  the  complaint  has  been  amended,  and  the  defendant 
fails  to  answer  it,  as  amended,  within  the  time  allowed  by  the 
Court. 

2.  If  the  denmrrer  to  the  complaint  is  overruled,  and  the 
defendant  fails  to  answer  at  once. 

3.  If  the  demurrer  to  the  answer  is  sustained,  and  the 
•lefendant  fails  to  amend  the  answer  in  the  time  allowed  bv 
the  Court. 


Judgments  other  than  by  Default. 

Judgments  upon  confession,  may  be  entered  up  in  any  Jus- 
tices' Court,  specified  in  the  confe.ssion. 

Judgment  that  the  action  be  dismi.sse.1  without  prejudice  to 
a  new  action,  may  be  entered,  with  costs,  in  the  following  cases : 

1.  When  the  plaintifi"  voluntarily  dismisses  the  action  be- 
fore it  is  finally  suiiiuitted. 

2.  When  he  fails  to  appear  at  the  time  specititid  in  the 
summims,  or  at  the  time  to  which  the  action  lias  been  post- 
poned, cr  within  one  hour  thereafter. 


Chap.   11] 


California. 


:{.  When,  after  a  domurrer  to  the  complaint  has  been  sus- 
tained, the  plaintiff  fails  to  amend  it  within  the  time  allowed 
by  tlie  Court. 

4.  When  it  is  objected  to  at  the  trial,  and  appears  by  the 
evidence,  that  the  action  is  brought  in  the  wrong  county,  dk 
township,  or  city ;  b\it  if  the  objection  is  taken  and  overruled, 
it  is  cause  only  of  reversal  on  appeal,  and  does  not  otherwise' 
invalidate  the  judgment ;  if  not  taken  at  the  trial,  it  is  waived. 
When  a  trial  by  jury  has  been  had,  judgment  must  l)e 
entered  by  the  Justice,  at  once,  in  conformity  with  the  verdict. 
When  the  trial  is  by  the  Court,  judgment  must  be  entered 
at  the  end  of  the  trial. 

VVnien  the  amount  f'^und  duo  to  either  party  exceeds  the 
sum  for  which  the  Justice  is  authorized  to  enter  judgment,  such 
party  may  reiiut  the  excess,  and  judgment  may  be  entered  for 
the  residue. 

If  the  detendant,  at  any  time  before  the  trial,  offer  in  writ- 
ing U)  allow  judgment  to  l)e  taken  against  him  for  a  specitie 
sum,  the  plaintitf  may  innne<liately  have  judgment  therefor, 
with  the  costs  then  accrued  ;  but  if  he  do  not  accept  such  otter 
liefore  the  trial,  and  fail  to  recover  in  the  action  a  sum  in  excess 
of  the  otter,  he  cannot  recover  costs,  but  costs  must  be  adjudgrd 
against  him,  and  if  he  recover,  lie  diMhicteil  from  his  recovery. 
The  otter  an<l  failure  to  accept  it  cannot  be  given  in  evidence, 
nor  affect  the  recovery  otherwise  than  as  to  costs. 

The  Justice  must  tax  and  include  in  the  judgment  the  costs 
allowed  by  law  to  the  prevailing  party. 

vVn  abstract  of  the  judgiiu'nt  may  be  tiled  and  docketeil  in 
the  otKcu  of  the  County  Clerk  of  the  county  in  which  the  jud^:- 
ment  was  rendered,  atid  the  judgment  docketed  in  the  judifuient 
docket  of  till'  Superior  Court  thereof. 

A  judgment  rendered  in  a  Justices'  Court  creates  no  lifu 
upon  any  lands  of  the  defent'ant,  unles.s  such  anal)stract  is  tiled 
in  the  office  of  the  Recorder  of  the  county  in  which  the  lands 
are  situated.  When  so  fileil  and  from  the  time  of  tiling  tlif 
judgnieiit,  it  l»ecomes  a  lien  upon  all  the  real  propi'rty  of  tin- 
judu'iiii'nt  debtor,  not   cMiiipt  from   exi'cution   in  such  county. 


t      m 


£  -t-^^-i..^ 


4G 


California. 


[Part  3 


owned  by  him  at  the  time,  or  which  he  may  afterwards,  and 
before  the  lien  expires,  ac(]uire.  The  lien  continues  for  two 
years,  unless  the  judgment  be  previously  satisfied. 


CHAPTER  XII. 

EXECUTION  — SALE  AND  REDEMPTION. 

The  party  in  whose  favor  judgment  is  given  may,  at  any 
time  within  five  years  after  the  entry  thereof,  have  a  writ  of 
execution  issued  foi  its  enforcement — same  in  Justice-Court 
actions.  The  execution  may  be  ma<le  returnable  at  any  time  not 
less  than  ten  nor  more  than  sixty  days  after  its  receipt  by  the 
Sheriff  or  Constable. 

Executions  may  at  the  same  time  be  i.ssuetl  to  different 
counties. 

In  Justices'  Courts  the  Justice  before  whom  the  action  is 
brou'dit  may  i.ssue  an  execution  directed  to  the  Sheriff  or  Con- 
stable  of  the  county  in  which  ju<lgment  is  obtained  ;  when  it  is 
(h'sired  to  issue  execution  directed  tf)  the  Shorifl  of  another 
county,  it  is  necessary  to  file  an  abstract  of  the  judgment  witli 
the  C(mnty  Clerk  of  the  county  within  which  the  judgment  is 
obtained,  and  have  him  i.ssue  the  execution. 

Notwithstanding  the  death  of  a  party  after  the  ju<lgment 
execution  thereon  may  be  i.ssuetl,  or  it  may  bo  enforced  as 
follows : 

1.  In  the  cast!  of  the  death  of  the  juilgment  creditor,  upon 
the  application  of  his  executor  or  administrator,  or  successor  in 
interest. 

2.  In  the  case  of  the  judgment  del>tor,  if  the  judgment  be 
for  the  recovery  of  real  or  personal  property,  or  the  (enforce- 
ment of  a  lien  thereon. 

W'hen  any  judgment  has  been  rendei'ed  for  or  against  tlx' 
testator  or  intestate  in  his  lifetime,  no  execution  shall  issut 
thereon  after  his  death,  except  as  above  provided.     If  execution 


■^ 


Chap.  12] 


California. 


47 


is  actually  levied  upon  any  property  of  the  decedent  before  his 
death,  the  .same  may  be  .sold  for  the  satisfaction  thereof  ;  and 
the  officer  making  the  sale  nni.st  account  to  the  executor  or 
administrator  for  any  .surplu.s  in  hi.s  hands. 

The  following  property  is  exempt  from  execution,  except 
upon  a  judgment  recovered  for  its  prici'  or  upon  a  mortgage 
thereon  : 

1.  Chairs,  tables,  desks  and  books,  to  the  value  of  two 
hundred  dollars,  belonging  to  the  judgment  debtor. 

±  Neces.sary  hou.sehold,  table,  and  kitchen  furniture  be- 
longing to  the  judgment  dt  btor,  including  :  one  sewing  machine, 
stoves,  stovepipes,  and  furniture,  wearing  apparel,  beds,  bed- 
ding, and  bedsteads,  hanging  pictures,  oil  paintings  and  draw- 
ings, drawn  or  painted  liv  any  member  of  the  fandly,  and  fam- 
ily portraits  and  tlieir  necessary  frames,  provisions  actually 
provided  for  individual  or  family  u.se  sufficient  for  three  months, 
anil  three  cows  and  their  sucking  calves,  four  hogs  with  their 
sucking  pigs,  and  food  fm-  such  cows  and  hogs  for  one  month. 

8.  The  farndng  utensils  or  implements  of  hu.sbandry  of 
the  juilgment  debtor  ;  also,  two  oxen,  or  two  horses,  or  two 
mules,  and  their  harness,  one  cart  or  wagon,  and  food  for  such 
oxen,  horses,  or  uniles,  for  one  month  ;  also,  all  seed,  grain,  or 
vegetables  actually  provided,  re.servcid,  or  on  hand  for  the  pur- 
pose of  planting  or  sowing  at  any  time  within  the  ensuing  .six 
months,  not  exceeding  in  value  the  sum  of  two  hundred  dollars, 
anil  seventy-tive  beehives,  and  one  horse  and  vehicle  belonging 
to  any  person  who  is  maimeil  or  crippled,  and  the  same  is  nec- 
essary in  his  business. 

4.  The  tools  or  implements  of  a  mechanic  or  artisan  neces- 
sary to  carry  on  his  trade  ;  the  notarial  seal,  records,  and  office 
furniture  of  a  Notar}'  Public;  the  instruments  imd  chest  of  a 
surgeon,  phj'sician,  surveyor,  or  dentist,  neces.sary  to  the  exer- 
cise of  their  profession,  witli  their  professional  libraries  anii 
neces.sary  office  furniture;  the  professional  libraries  of  attor- 
neys, judges,  ministers  of  the  gospel,  editors,  school  teachers, 
and  uuisic  teachers,  and  their  necessary  office  furniture  ;  also. 


■  .Iji 


1. 


48 


California. 


[Part  3 


the  musical  instruments  of  music  teachers  actually  used  hy 
them  in  givincj  instructions,  and  all  the  indexes,  abstracts,  books, 
papers,  maps,  and  office  furniture  of  a  Searcher  of  Records, 
necessary  to  be  used  in  his  profession. 

5.  The  cabin  or  dwelling  of  a  miner  not  exceeding  in  value 
the  sum  of  five  hundred  dollars ;  also  his  sluices,  pipes,  hose, 
windlass,  derrick,  cars,  pumps,  tools,  implements,  and  appliances 
necessary  for  carrying  on  any  mining  operations,  not  exceeding 
in  value  the  aggregate  sum  of  five  hundred  dollars ;  and  two 
horses,  mules  or  oxen,  with  their  harness,  and  food  for  such 
horses,  mules,  or  oxen  for  one  month,  when  n«!cessary  to  be  used 
in  any  whim,  windlass,  derrick,  car,  pump,  or  hoisting  gear  ; 
and  also  his  mining  claim,  actually  worked  by  him,  not  exceed- 
intr  in  value  the  sum  of  one  thousand  dollars. 

G.  Two  horses,  two  oxen,  or  two  mules,  and  their  harness, 
and  one  cart  or  wagon,  one  dray  or  truck,  one  coupe,  one  hack 
or  carriage,  for  one  or  two  horses,  by  the  use  of  which  a  cart- 
man,  drayman  truckman,  huckster,  peddler,  hackman,  teamster, 
or  other  laborer  habitually  earns  hi.s  living,  and  one  horse, 
with  vehicle  and  harness  or  other  e(|uipnients,  used  by  a  ])hy- 
sician,  surgeon,  constable,  or  minister  of  the  gospel,  in  the 
legitimate  practice  of  his  profession  (jr  business,  with  food  for 
such  oxen,  horses,  or  mules  for  one  month. 

7.  One  fishing  boat  and  net,  not  exceeding  the  total  value 
of  five  hundred  dollars,  the  property  of  any  fisherman,  by  the 
lawful  use  of  which  he  earns  a  livelihood. 

(S.     Poultry  not  exceeding  in  value  twenty-five  dollars. 

9.  The  earnings  of  the  juflgment  debtor  for  his  personal 
services  rendered  at  any  time  within  thirty  days  next  preced- 
ing the  levy  of  execution  or  attachment,  when  it  appears,  by 
the  debtors'  affidavit  or  otherwise,  that  such  earnings  are 
necessary  for  the  use  of  his  family,  residing  in  this  State,  suji- 
ported  in  whole  oi"  in  part  by  his  labor;  but  where  debts  are 
incurred  by  any  s\u'h  person,  or  his  wife  or  family,  for  the 
commtm  necessaries  of  life,  the  one-half  of  such  earnings  above 
mentioned  are  nevertheless  sulij(!ct  to  execution,  garnishment, 
or  attachment  to  satisfy  debts  so  incurred. 


Chap.  12] 


California. 


49 


10.  The  shares  held  by  a  member  of  a  homesteail  associ- 
ation duly  incorporated,  not  exceeding  in  value  one  thousand 
ilollars,  it'  the  person  holding  the  shares  is  not  the  owner  of  a 
liomestcad  under  the  laws  of  thi.s  State.  All  the  nautical  in- 
struments and  wearing  apparel  of  any  master,  officer,  or  sea- 
man of  any  steamer  or  other  vessel. 

11.  All  moneys,  benefits,  privileges,  or  immunities  accru- 
ing or  in  any  manner  growing  out  of  any  life  insurance  on  the 
life  of  the  debtor,  if  the  annual  premiums  paid  do  not  exceed 
five  luindred  dollars. 

12.  All  fire  engines,  hooks  and  ladders,  with  the  carts, 
trucks,  and  carriages,  hose,  buckets,  implements,  and  apparatus 
thereunto  appertaining,  and  all  furniture  and  uniforms  of  any 
Hre  company  or  department  organized  under  any  laws  of  this 
State. 

i:i  All  arms,  uniforms,  and  accouterments  required  by 
law  to  l)e  kept  by  any  person,  and  also  one  gun  to  be  selected 
l)y  the  debtor. 

14.  All  Court-houses,  jails,  public  offices,  and  building.s, 
lots,  grounds,  and  per.sonal  property,  the  fixtures,  furniture, 
books,  papers,  and  appurtenances  belonging  and  pertaining  to 
the  jail  and  public  offices,  belonging  to  any  county  or  to  any 
city  and  county,  of  this  State,  and  all  cemeteries,  public  s(|uares 
parks  and  places,  public  buildings,  town  halls,  markets,  build- 
ings for  the  u.se  of  fire  d(.'})artments  and  military  organizations, 
and  the  lots  and  grounds  thereto  belonging  and  appertaining^ 
owned,  or  held  by  any  town  or  incorporated  city,  or  dedicated 
by  such  town  or  city,  to  health,  ornament,  or  public  use,  or  for 
the  u.se  of  fire  or  military  company,  organized  under  the  laws 
of  this  State. 

For  exemptions  of  homesteads,  sec  "  Homesteads." 

Notice  of  Sale. 


Before  the  sale  of  property  on   execution,  notice  thereof 
must  be  given  as  follows :    [Same  in  Justice-Court  actions.] 


50 


California. 


[Part  :i 


wj'i 


I!  t! 


1 .  In  the  case  of  perishable  property :  by  posting  written 
notice  of  the  time  and  place  of  sale  in  three  public  places  of 
the  township  or  city  where  the  sale  is  to  take  place,  for  such 
time  as  may  be  reasonable,  considering  the  character  and  con- 
dition of  the  property. 

2.  In  case  of  other  personal  property  :  by  posting  a  similar 
notice  in  three  public  places  in  the  township  or  city  where  the 
sale  is  to  take  place,  for  not  less  than  five  nor  more  than  ten 
days. 

3.  In  case  of  real  property :  by  posting  a  similar  notice 
particularly  describing  the  property,  for  twenty  days,  in  three 
public  places  of  the  township  or  city  where  the  property  is  sit- 
uated, and  also  where  the  property  is  to  be  sold,  and  publishing 
a  copy  thereof  once  a  week  for  the  same  period,  in  some  news- 
paper published  in  the  county  if  there  be  one. 

Sale  of  Real  Property  —  When  Absolute  or  Not. 

Upon  a  sale  of  real  property  the  purchaser  is  substituted  to 
and  acquires  all  the  right,  title,  and  interest,  and  claim  of  the 
judgment  debtor  thereto ;  and  when  the  estate  is  less  than  fi 
leasehold  of  two  years'  unexpired  term,  the  sale  is  absolute.  In 
other  cases  the  property  is  subject  to  redemption. 


'1.1' 


Certificate  of  Sale  of  Real  Estate. 

The  officer  must  give  the  purchaser  a  certificate  of  sale,  and 
a  duplicate  of  such  certificate  must  be  filed  b}'  the  ofticer  in  tlu' 
office  of  the  Recorder  of  the  count}'. 


By  Whom  Property  may  be  Redeemed,  and  When. 

Property  sold,  subject  to  redemption,  as  above  provided,  or 
any  part  sold  separately,  maybe  redeemed  in  the  manner  here- 
inafter provide^,  by  the  following  persons  or  their  successors  in 
interest  : 

1.  The  judgment  debtor  or  his  successor  in  interest,  in  thi' 
whole  or  any  part  of  the  property. 


Chap.  12] 


California. 


.-)] 


2.  A  creditor  liaving  a  lien  by  jucl(j;nicnt  or  mortgage,  on 
the  property  .sold,  or  on  .some  shave  or  part  thereof  subsequent 
to  that  on  which  the  property  was  sold. 

The  judgment  debtor  or  redemptioner  may  redeem  the  prop- 
erty from  the  purchaser  at  any  time  witliin  six  months  after 
the  sale,  on  paying  the  purchaser  the  amount  of  the  purchase, 
with  two  per  cent,  a  month  thereon  in  addition,  up  to  the  time 
of  redemption,  together  with  the  amount  of  any  a.ssessment  or 
taxe.s  which  the  purchaser  may  have  paid  thereon  after  the 
purchase,  and  interest  on  such  amount ;  and  if  the  purcha.ser  be 
also  a  creditor,  having  a  prior  lien  to  that  of  the  redemptioner.- 
other  than  the  judgment  under  which  such  purcha.se  was  made, 
the  amount  of  such  lien,  with  interest. 

If  property  be  so  redeemed  by  a  redemptioner,  another  re- 
ileiujitioner  may,  within  sixty  days  after  the  last  redemption, 
again  redeem  it  from  the  last  redemptioner,  on  paying  the  sum 
paid  on  such  last  redemption,  with  four  per  cent,  thereon  in 
aildition,  and  the  amount  of  any  as.se.ssment  or  taxes  which  the 
last  redemptioner  may  have  paid  thereon  after  the  redemption 
by  him  with  interest  on  such  amount;  and,  in  addition,  the 
amount  of  any  liens  held  by  said  last  i-edemptioner  prior  to  his 
own,  with  interest ;  but  the  judgment  under  which  the  property 
was  .sold  need  not  be  so  paid  as  a  lien.  The  property  may  be 
ajain,  and  as  often  as  a  redemptioner  is  so  dispcsed,  redeemed 
from  any  pi'cvious  redemptioner  within  sixty  days  after  the 
last  redemption,  on  paying  the  sum  paid  on  the  last  previous 
redemption,  with  four  per  cent,  thereon  in  addition,  and  the 
amount  ol"  anj"  assessments  or  taxes  which  the  last  previous 
reilemptioner  paid  after  the  retlemption  by  him,  with  interest 
thereon;  and  tlie  anjount  of  any  liens,  other  than  the  judgment 
under  which  the  property  was  sold,  held  by  the  last  redemp- 
tioiu'r  previous  to  his  own,  with  interest.  Written  notice  of 
ivdcmption  must  be  given  to  the  Sheriff,  and  a  duplicate  filed 
with  the  Recorder  of  the  county;  and  if  any  taxes  or  assess- 
ments are  paid  by  the  redeniptioner,  or  if  he  has  or  acijuires 
uiiy  lien  other  than  that  upon  which  the  redemption  was  made, 
notice  thereof  nmst  in  like  manner  be  given  to  the  Hheriff",  and 


T 


52 


California. 


[Part  :i 


filed  with  the  Recorder;  and  if  such  notice  be  not  filed,  the 
property  may  be  redeemed  without  payin<,'  such  tax,  assess- 
ment, or  lien.  If  no  redemption  be  made  within  six  months 
after  the  .sale,  the  purchaser  or  his  assignee  is  entitled  to  a  con- 
veyance ;  or,  if  so  redeemed,  whenever  si.xty  days  have  elapsed, 
and  no  other  redemption  has  been  made,  and  notice  thereof 
given,  and  the  time  for  redemption  has  expired,  the  la.st  re- 
demptioner  or  his  assignee  is  entitled  to  a  Sheriffs  deed;  but 
in  all  cases  the  judgment  debtor  .shall  have  the  entire  period  of 
six  months  from  the  date  of  the  sale  to  redeem  the  property- 
•If  the  judgment  debtor  redeem,  he  must  take  the  same  pay- 
ments as  are  required  to  effect  a  redemption  by  a  redemptioner. 
If  the  debtor  redeem,  tiie  efi'ect  of  the  sale  is  terminated,  and  he 
is  restored  to  his  estate.  Upon  a  redemption  by  the  debtor, 
the  person  to  whom  the  payment  is  made  nuist  execute  and 
tleliver  to  him  a  certificate  of  redemption,  acknowledged  or 
proved  before  an  oHiicer  authorized  to  take  acknowledgments 
of  conveyances  of  real  property.  Such  certificate  must  be 
filed  and  recorded  in  the  office  of  the  Recorder  of  the  county 
in  which  the  property  is  situated. 

Payment  maj'  be  made  to  the  purchaser  or  redemptioner. 
or  for  him,  to  the  officer  who  made  the  sale. 

A  redemptioner  must  produce  to  the  officer  or  person  from 
whom  he  seeks  to  redeem,  and  .serve  with  his  notice  to  the 
Sheriff: 

1.  A  copy  of  th(!  docket  of  the  judgment  under  which  he 
claims  the  right  to  redeem,  certified  by  the  Clerk  of  the  Court, 
or  of  the  county  where  the  judgment  is  docketed  ;  or  if  he 
redeem  upoii  a  mortgage  or  other  lien,  a  note  of  the  record 
thereof  certified  by  the  Recorder. 

2.  A  copy  of  any  assignment  necessary  to  establish  hi.s 
claims,  verifie<l  by  the  affidavit  of  hhn.self  or  of  a  subscribing 
witness  thereto. 

3.  An  afliidavit  by  himself  or  his  agent,  showing  tlu' 
amount  then  actually  due  on  the  lien. 

Until  the  expiration  of  the  time  allowed  for  redemption,  the 
Court  may  restrain  the  commission  of  waste  on  the  property. 


!.       I,- 
'1  ;,,!;!« 


11  'I 


Chap.  12] 


California. 


53 


The  purchaser,  from  the  tunc  of  the  sale  until  a  rcileniption, 
and  a  redeujptionrr,  from  the  time  of  his  reih-mption  until 
another  redemption,  is  entitled  to  receive  from  the  tenant  in 
possession  the  rents  of  the  property  sold,  or  the  valui  of  the 
use  and  occupation  thereof.  But  when  any  rents  or  profits 
have  been  received  by  the  judf^ment  creilitor  or  purchaser,  or 
his  or  their  assirrns,  from  the  prop(u-ty  thus  sold  preceding- 
such  redemption,  the  amounts  of  such  rents  and  profits  .shall 
lie  a  credit  upon  the  redemption  money  to  be  paid. 


CHAPTER  XIII. 


PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION 

When  an  i-xecution  against  property  of  the  judgment 
debtor — or  any  one  of  the  .several  debtors  in  the  .same  judgment, 
issued  to  the  Sheriff  of  the  county  where  he  resides,  or  if  he  do 
not  reside  in  this  State,  to  the  Sht-ritfof  the  county  where  the 
judgment  roll  is  tiled — is  returned  unsatistied,  in  whole  or  in 
part,  the  judgment  creditor,  ut  any  tini'  after  such  return  is 
made,  is  entitled  to  an  order  from  the  Judge  of  the  Court. 
re(iuiring  such  judgment  debtor  to  appear  and  answer  concern- 
ing his  property,  before  such  Judge,  or  a  referee  appointed  by 
him,  at  a  time  and  place  specified  in  the  order ;  but  no 
judgment  debtor  must  be  retjuired  to  attend  before  a  Judge  or 
referee  out  of  the  county  in  which  he  resides. 

After  the  issuing  of  an  execution  against  property,  and 
upon  proof,  by  affidavit  of  a  party  or  otherwise,  to  tlie  .satisfac- 
tion of  the  Court,  or  a  Judge  thereof,  that  any  judgment 
debtor  has  property  which  he  unjustly  refuses  to  apply  toward 
the  .satisfaction  of  the  judgment,  such  Court  or  Judge  may,  by 
an  order,  retiuire  the  judgment  debtor  to  appear  at  a  .specified 
time  and  place  before  such  Judge  or  referee  apjwinted  by  him, 
to  answer  concerning  the  same;  and  such  proceedings  may  there- 
upon be  had  for  the  application  of  the  property  of  the  judgment 


/ 


il  III 

il  I 


54 


California. 


[Part  .1 


debtor  toward  the  satisfaction  of  the  judgment  as  are  provided 
upon  the  return  of  an  execution.  Insteail  of  the  order  requiriuL;,' 
the  attendance  of  the  jud<.,Mncnt  debtor,  the  Judge  may,  upon 
affidavit  of  the  judgment  creditor,  his  agent  or  attorney,  if  it 
appears  to  him  that  there  is  danger  of  the  debtor  absconding, 
order  the  Sheriff  to  arrest  the  debtor  and  brinti  liim  before 
.such  Judge.  Upon  being  brought  before  the  Judge,  he  may  be 
ordered  to  enter  into  an  undertaking,  with  sufficient  surety,  that 
he  will  attend  from  time  to  time  before  the  Judge  or  referee,  as 
may  be  directed,  during  the  pendency  of  proceedings  and  until 
the  final  termination  thereof,  and  will  not,  in  the  meantime, 
dispo.se  of  any  portion  of  his  property,  not  e.xempt  from  e.\i-eu- 
tion.  In  default  of  entering  into  such  undertaking  he  may  be 
committe<l  to  prison. 

After  the  i.ssuing  of  an  execution  against  property,  and 
before  its  return,  any  person  indebted  to  the  judgment  debtor 
may  pay  to  the  Sheriff'  the  amount  of  his  debt,  or  .so  mueh 
thereof  as  may  lie  necessary  to  .satisfy  the  execution  ;  and  the 
Sheriff's  receipt  is  a  sufficient  discharge  for  the  amount  so 
paid. 

After  the  issuing  or  return  of  an  execution  against  property 
of  the  judgment  debtor,  or  of  any  one  of  several  debtors  in 
the  same  judgment,  or  upon  proof,  by  affidavit  or  otherwise,  to 
the  satisfaction  of  the  Judge,  that  any  per.son  or  corporation 
has  property  of  such  judgment  debtor,  or  is  indebted  to  him  in 
an  amount  exceeding  fifty  dollars,  the  Judge  may,  by  an  order, 
require  such  person  or  corporation,  or  any  officer  or  member 
thereof,  to  appear  at  a  specified  time  and  place  before  him,  or  a 
referee  appointed  by  him,  and  answer  concerning  the  same. 

Witnesses  may  be  retiuired  to  appear  and  testify  before  the 
Judge  or  referee.  The  Judge  or  referee  may  order  any  property 
of  a  judgment  debtor,  not  exempt  from  execution,  in  the  hands 
of  such  debtor  or  any  other  person,  or  due  to  the  judgment 
debtor,  to  be  applied  toward  the  satisfaction  of  the  judgment. 

If  it  appear  that  a  per.son  or  corporation,  alleged  to  have 
property  of  the  judgment  debtor,  or  to  be  indebted  to  him,  claims 


Chap.  13] 


Califounia. 


.)j 


an  interest  in  the  property  adverse  to  him,  or  denies  the  del  it, 
thi'  Court  or  a  Jiul<;e  nmy  authorize,  l>y  an  order  made  to  that 
cfh'ct,  the  judgment  creditor  to  institute  an  action  against  sucii 
person  or  corporatioii  tor  the  recovery  of  such  interest  or  deht ! 
and  the  Court  or  Judge  may,  by  order,  forbid  a  transfer  or 
other  disposition  of  such  interest  or  debt,  until  an  action  can 
lie  connnenced  and  prosecuted  to  judgment. 

If  any  person,  party,  or  witness  disobey  an  order  of  the 
referee,  properly  made,  in  proceedings  before  him,  he  muj'  be 
[)unished  by  the  Court  m*  Judge  ordering  the  refcu'ence,  fcjr  a 
contempt. 


CHAPTER  XIV. 
COSTS. 

The  general  rule  is  that  judgment  carries  cost. 

When,  in  an  action  for  the  recovery  of  money  only,  the 
ilefendant  alleges  in  his  answer  that  iK'fore  the  commencement 
of  the  action  he  tendered  to  the  plaintiff  the  full  amount  to 
which  he  was  entitled,  and  thereupon  deposits  in  Court  for  the 
plaintili'  the  amount  so  tendered,  and  the  allegation  be  found 
to  be  true,  the  plaintiti'  cannot  recover  costs,  but  m.ist  pay 
costs  to  the  defendant. 

When  several  actions  are  brought  on  one  bond,  undertaking, 
promissory  note,  bill  of  exchange,  or  other  instrument  in  writ- 
ing, or  in  any  other  case  for  the  same  cause  of  action,  against 

several  parties  who  might  have  been  joineil  as  defendants  in 
the  same  action,  no  costs  can  be  allowed  to  the  plaintiti'  in  more 
than  one  of  such  actions,  which  may  be  at  his  election,  if  the 
parties  proceeded  ajrainst  in  tlie  other  actions  were,  at  the  com- 
mencement of  the  previous  action,  openlj'  within  this  .State  ; 
but  the  disbursements  of  the  plaintiff  must  be  allowed  to  hiui 
in  each  action.  • 


50 


California. 


[Par    :J 


Security  for  Costs. 

Wliun  the  pluiiitifi'  in  an  action  resides  out  of  the  State,  or 
is  a  foivif^n  corporation,  security  for  the  costs  and  charges, 
which  may  he  awarded  a^^jainst  such  phvintitf,  may  be  reijuircd 
hy  the  defendant. 

When  required,  all  proceedings  in  the  action  must  he  stayed 
until  an  undertaking,  ex(!cuted  by  two  or  more  persons,  is  filed 
with  the  Clerk,  to  the  ettect  that  they  will  pay  such  costs  and 
charges  as  may  be  awarded  against  the  plaintiti*  by  judgment, 
or  in  the  progress  of  the  action,  not  exceeding  the  .sum  of  three 
hnmlred  dollars.  A  new  or  additional  undertaking  nuiy  be 
ordered  liy  the  C  )urt  or  Jtidge,  upon  proof  that  the  original 
undertaking  is  insutlicient  security,  and  proceedings  in  the 
action  staved  imtil  .«uch  new  or  additional  undertakin<'  is  exe- 
cuted  and  filed.  W  such  .security  is  not  given  by  the  plaintiti" 
within  thirty  days  after  notice  that  security  is  required,  the 
Court  or  Judge  may  order  the  action  dismi.ssed. 


P 


%m 


CHAPTER  XV. 


APPEALS  IN  CIVIL  ACTIONS. 


f 


Appeals  in  General. 

Within  what  time  a[)peals  may  be  taken : 

1.  From  a  final  jutigment  in  an  action  or  spjcial  proceed- 
ing eoiumeneed  in  the  Court  in  which  the  same  is  rendered, 
within  one  year  after  the  entry  of  judgment,  liut  an  excep- 
tion to  the  decision  or  verdict,  on  the  ground  that  it  is  not  sup- 
ported l)y  the  eviflence,  cannot  be  revieweil  on  an  appeal  from 
the  judgment,  unless  the  appeal  is  tak»ni  within  sixty  days 
after  the  rendition  of  the  judgment. 

2.  From  a  judgment  rendered  on  an  appeal  from  an  in- 
ferior Court,  within  ninety  days  after  the  entry  of  such  judg- 
mi  nU 


Clmi).  1--)] 


California. 


•>/ 


•S.  From  un  (jnler  <;ranUnn-  or  refusing  a  new  trial;  from 
an  order  ^nantinj^  or  dissolving  an  injunet.ion;  from  an  order 
refusing  to  grant  or  dissolve  an  injunction  ;  from  an  order  dis- 
solviniT  or  refusini;  to  dissolve  an  attadnnont ;  from  an  order 
granting  or  refusing  to  grant  a  change  of  tlie  place  of  trial : 
from  any  special  order  made  aft.iM'  ''.■■  final  judgment  and 
from  an  interlocutory  ju<lgm.'iit  in  actions  for  partition  of  real 
property,  within  sixty  days  after  the  order  or  interlocutory 
judgment  is  made  and  entered  in  the  minutes  of  the  Court  or 
tiled  with  the  Clerk. 

An  appeal  is  taken  1)}'  filing,  with  the  Clerk  of  the  Court 
in  which  the  judgment  or  order  appealed  from  i"  entered,  ii 
notice  stating  the  appeal  from  the  same,  or  some  specific  part 
thereof,  and  .serving  a  similar  notice  on  tlu'  adverse  party  or 
his  attorney.  The  order  of  service  is  immaterial:  hut  thf 
a])peal  is  inetiectual  for  any  purpose  unless,  within  five  days 
after  service  of  the  notice  of  appeal,  an  undertaking  he  filetl,  (tr 
a  deposit  of  money  he  made  with  the  Clerk,  as  hereinafter  pro- 
vided, or  the  undertaking  he  waived  hy  the  adverse  party  in 
writing. 

The  undertaking  on  appeal  must  Ite  in  writing,  and  juust 
he  executed  on  the  part  of  the  appellant  hy  at  least  two  sure- 
ties, to  the  effect  that  the  appellant  will  pay  all  damages  and 
costs  which  n»ay  he  awarded  against  Iiim  on  the  appeal,  or  on 
dismissal  th^-reof,  not  exceedir.g  three  inindred  dollars:  or  that 
sum  must  be  depositud  witli  tht'  C'lerk  with  whom  the  judg- 
iiKtnt  or  order  was  taitered,  t(j  ahitle  the  evont  of  the  appeal. 

Jf  the  appeal  he  from  a  judgment  or  order  directing  the 
payii  ent  of  money,  it  iloes  not  stay  the  execution  of  tlie  judg- 
ment or  onler,  unless  a  written  undertaking  be  executed  on  the 
pUii-  of  the  a|)pellant,  by  two  or  more  sureties,  to  the  effect 
that  they  are  hound  in  double  the  amount  nameil  in  the  jud^'- 
iiicnt  or  order,  that  if  thr  judgment  ororvler  appealed  from.  f»r 
any  part  li.ereof,  be  atlirmed,  or  the  appeal  be  dismissed,  the 
appellant  will  pay  tin;  nmount  diructeil  to  he  paid  by  the  judg- 
ment or  order ;  or  the  part  of  such  ainount  as  to  whicli  tho 


i!  .'. 


I  ■W 


58 


Camfohnia. 


[Part  :i 


judpjment  or  ordor  is  affirine<l,  if  nffirnu-fl  only  in  part;  and  all 
damages  and  ccstn  which  may  hi;  awarded  a;j;ainst  the  appellant 
upon  the  appeal.  And  that  il'  the  appelant  does  not  makt; 
such  payment,  within  thirty  days  after  the  filing  oi  the  remit- 
titur from  the  Supreme  Court,  in  the  Court  from  which  tlie 
Appeal  is  taken,  judgment  may  be  entered  on  motion  of  the 
respondent  in  his  favor  against  the  sureties,  for  such  amount> 
together  with  the  interest  that  may  bo  flue  thereon,  and  tlw; 
damages  and  costs  which  ma}'  l)e  awarded  against  the  appellant 
upon  the  appeal  If  the  judgment  or  ord(;r  appeale<l  from  be 
for  a  greater  amount  than  two  thousand  dollars,  jukI  the  sure- 
ties do  not  state  in  their  afHdavit  of  justification  accompanying 
the  undertaking,  that  they  are  each  worth  the  sum  specified  in 
the  undertaking,  the  stipulation  may  be  that  the  judgment  to 
bo  entered  against  the  sureties  shall  be  for  sucli  amounts  only 
as  in  their  affidavits  they  may  state  that  they  are  severally 
worth,  and  judgment  may  be  entered  against  the  sureties  by 
the  Court  from  which  the  appeal  is  taken  pursuant  to  the  stip- 
ulations therein  designatiMl. 

When  the  judgment,  or  order,  appealed  from  is  made  pay- 
able in  a  specified  kind  of  money  or  currency,  the  judgment 
entered  against  the  sureties  upon  the  undertaking,  nnist  be 
made  payable  in  the  same  kind  of  money  or  eiirrency. 

When  an  appeal  is  perfected  it  stays  all  further  proceedings 
in  the  Court  below,  upon  the  judgment  or  order  appealed  from, 
or  upon  the  nuitters  embraced  therein,  and  releases  from  levy, 
property  which  has  'been  levied  upon  under  executior.  issued 
upon  such  judgment. 

The  adverse  party  may  <!xcept  to  the  sufficiency  of  the 
sureties  to  the  imdertaking  on  appeal. 

The  foregoing  provisions  in  regard  to  appeals  do  not  apply 
to  appeals  to  the  Superior  Court  from  Justices'  or  Police  Courts. 


Appeals  from  Superior  Courts. 

An  appeal  may  b(>  taken   to  the  Suprcm»>   Court  from  ii 
Jiuperii>r  Court,  in  the  foliinving  ca.ses : 


Chap.   15] 


Califohxia. 


'.!► 


1.  From  a  final  judj^incnt  cntorcil  in  an  action  or  s|Hriul 
proceeding  conunenced  in  a  Superior  Court,  or  brou<flit  into  a 
Superior  Court  from  another  Court. 

2,  From  an  order  <:frantini^  or  ret'usinjf  a  new  trial,  or 
Lfrantin;^  or  di.s.solvinjj;  an  injunction,  or  rt'fusin<,'  to  ^rant  or 
dissolve  an  injunction,  or  dissolvinjij  or  refusini,'  to  dissolve  an 
iittuchment,  or  chani,'int(  or  refusin;^'  to  cliannc  the  place  of 
trial,  from  any  special  order  tnadt?  after  final  judgment,  and 
}V()in  such  interlocutory  _)U<l;;,'ment  in  actions  for  partition  as 
determines  tlie  rights  and  interests  of  the  respective  parties  and 
directs  partition  to  be  nuide. 

'.].  From  a  jud;4;mont  or  order  f^rantincf  or  refusing  to  grant, 
revoking  or  refusing  to  revoke,  lettei-s  testamei;tary,  or  of  ad- 
ministration, or  of  guardianship;  or  admitting  or  refusing  to 
admit  a  will  to  probate,  or  against  or  in  favor  of  the  validity 
of  a  will,  or  revoking  the  probate  thereof ;  or  against  or  in 
favor  of  setting  apai't  property,  or  making  an  allowance  for  a 
widow  or  child  ;  or  against  or  in  favor  of  directing  the  parti- 
tion, sale,  or  conveyance  of  real  property,  or  settling  an  account 
of  an  executor,  or  administrator,  or  guardian ;  or  refusing 
allowing,  or  directing  the  distribution  or  partition  of  an  estate, 
or  any  part  thereof,  or  the  payn>ent  of  a  debt,  claim,  or  legacy, 
or  tlistributive  share;  or  confirming  or  n'fusing  to  confirm  a 
report  of  an  appraiser  .setting  a])art  a  homestead. 

The  foregoing  does  not  apply  in  cases  appealed  from  Jus- 
tices', Police,  or  other  inferior  ('ourts,  except  cases  of  (orcil'le 
entry  and  detainer,  and  cases  involving  the  legality  of  any  tax, 
impost,  as.sessinent,  toll,  or  nuniicipal  tine;  or  in  which  the  de- 
mand, exclusive  of  interest  or  the  value  of  tlie  property  in 
(■(lutrover.sy,  amounts  to  three  hundred  dollars. 


Appeals  from  Justices*  or  Police  Courts. 

Any  party  dissatisfied  with  a  judgment  r'UiK-red  in  a  civil 
action  in  a  Police  or  .lustice's  Court,  may  appeal  therefrom  to 
the  Superior  Court  of  the  county,  at  any  time  within  thirty 
days  after  the  rendition  of  the  judgment 


1111'^ 


60 


California. 


[Part  8 


ii  i- 


^•■ 


1 

j! 

■■    ¥\ 

M 

(I   i 

>«  1 

:' 

km 

i 

Parties  appealing'  on  (piostions  of  law  alone,  must,  within 
ten  days  from  rendition  of  ju<lguient,  prepare  a  statement  of 
the  case,  and  file  the  same  with  the  Justice  or  Jud<,'e.  When 
the  appeal  is  taken  on  ipiestions  of  fact,  or  (piestions  of  both 
law  and  fact,  no  .statement  need  he  made,  but  the  action  must 
be  tried  anew  in  the  Superior  Court. 

An  appeal  from  a  Justice's  or  Police  Court  is  not  effectual 
for  any  purpo.se.  luiless  an  undertakinjL^  be  filed,  with  two  or 
more  sureties,  in  the  sum  of  one  hundred  dollars,  for  the  pay- 
ment of  the  costs  on  the  a})peal ;  or  if  a  sta}'  of  the  proceec linns 
be  claimed,  in  a  sum  equal  to  twice  the  amount  of  tlu;  judg- 
ment includin;i[  costs,  when  the  judgment  is  for  the  payment  of 
money  ;  or  twice  the  value  of  the  property,  including  costs 
when  the  judgment  is  for  the  recovery  of  specific  personal 
property;  and  nnist  be  comlitioned,  when  the  actiim  is  for  the 
lecover}'  of  money,  that  the  appellant  will  pay  the  amount  of 
the  judgntent  appealed  from,  and  all  costs,  if  the  appeal  be 
witlnlrawn  or  dismi.ssed,  or  the  amount  of  any  judgment  and 
all  costs  that  may  be  recovered  against  him  in  the  Superior 
C'ourt.  When  the  action  is  for  the  recovery,  or  to  en- 
forci-  or  foreclose  a  lien  on  .specific  personal  property,  the 
undertaking  must  be  ccmditioned  that  the  appellant  will  [tny 
the  judgiiu-nts  and  co.sts  ajipealed  from,  and  obey  the  order  of 
the  Court  made  therein,  if  the  appeal  be  withdrawn  or  dis- 
missed, or  any  judgment  and  costs  that  r.iay  be  recovered 
against  him  in  .said  action  in  the  Superior  Court,  and  will  obey 
any  order  made  by  the  Couit  therein.  Wlnni  the  judgment 
appt-nled  from  directs  the  delivery  of  possession  of  real  prop- 
erty, the  execution  of  the  same  cannot  be  stayed  unless  a  wi'it- 
ten  undeitaking  be  executed  on  the  part  of  the  appellant,  with 
twu  or  more  sureties,  to  the  etl'ect  that  during  the  ])os.session  of 
such  property  by  the  appellant  \n.  will  not  connnit  or  suffer  to 
be  connnitted,  any  waste  thereon ;  and  if  the  appeal  be  dis- 
ndssed  or  withdrawn,  or  the  judgmeist  aftirmeil,  or  judgnu^nt  be 
recovered  against  him  in  t!ie  action  in  the  Superior  Court,  he 
will  pay  the  value  of  the  u.se  an<l  occupation  of  the  property 
fiom  the  time  of  the  uppoal  until  the  delivery  <>f  po.s.session 


AY 


t  :i 


Clwjp.    1.')] 


California. 


61 


rithin 
;nt  of 
When 
:  both 
[  must 

ectual 
Avo  »<;• 
10  pay- 
^eilini!:^ 
D  judji- 
lu'nt  of 
nr  costs 
)(',rsonal 
,  for  the 
lount  of 
ipeal   1  >«• 
cnt  ami 
•suporior 
to    cn- 
irty,  thf 
will  pay 
order  of 
I  or  (Us- 
■ocoveH'tl 

will  obey 
iidifment 

eal  pvop- 
^s  a  writ- 
ant,  with 
session  <»1 
!•  snlh'V  to 
il   lie  lUs- 
hrment/  bi' 
Court,  h.' 
property, 
possession 


thereof,  or  that  he  will  pay  any  ju(l<,'ment  an<l  costs  tliat  may 
bo  recovered  npiinst  him  in  said  action  in  the  Superior  Court, 
not  exccedinfj  a  sum  to  bo  fixed  by  the  Justice  of  the  Court 
from  which  the  appeal  is  taken,  and  which  sum  must  bo  speci- 
fied in  the  undcrtakinof.  A  deposit  of  the  amount  of  the  judn- 
uient,  includiim  all  costs,  appealeu  from,  or  of  the  value  of  the 
property,  includin<,(  all  costs,  in  actions  for  the  recovery  of 
specific  personal  property,  with  the  Justice  or  Ju<lj,'o,  is  etpiiva- 
lent  to  the  tilinj,'  of  the  undertaking.  The  adverse  party  may 
except  to  tlie  sufficiency  of  the  sureties  within  five  days  after 
the  tiling  of  the  undertaking,  and  mile.ss  they  or  other  sureties 
justify  before  the  Justice  or  Judge,  within  five  days  thereafter, 
upon  notice  to  the  adverse  i)arty,  to  the  amounts  statetl  in  their 
affidavits,  the  appeal  must  be  regarded  u,s  if  no  such  undertak- 
ing had  been  given. 

On  filing  the  above  undertaking,  execution  must  be  .stayed. 
For  a  failure  to  prosecute  an  appeal,  or  \uinecessary  delay 
in  bringing  it  to  a  hearing,  tht;  Superior  Court,  aft<;r  notice, 
may  order  the  appeal  to  be  dismisstMl,  with  costs;  and  if  it 
appi'ar  to  such  Court  that  the  appeal  was  nuido  solely  for  delay, 
it  may  adil  to  the  costs  such  damages  as  ii»Hy  be  just,  not 
exceeding  twenty-five  per  cent,  of  the  jmlgment  appealed  from. 


CHAPTER  XVI. 

NEW  TRIALS. 

A  new  trial  may  bo  granted  for  anj'  of  tlie  following 
causes,  materially  affecting  the  substantial  rights  of  the  party 
aggrieved: 

1.  Irregularity  in  the  proceedings  of  the  Court,  jury,  oi 
adverse  party,  or  any  order  of  tlie  ( .'ourt,  or  abuse  of  discretion. 
l>y  which  either  party  was  prevented  from  having  a  fair  trial. 

2,  Miscond^iet  of  the  jury,  and  whenever  any  one  or  more 
•if  tlie  jumi-K  ha\"  Imi'U  indut-ed  to  assent  to  any  general  or 


(J2 


Caufdunia. 


[Pnrt  .'i 


special  verdict,  or  to  finding  on  any  (jucstion  submitted  to  them 
by  the  Court  by  a  resort  to  the  determination  of  chance,  such 
misconduct  may  be  proved  by  the  affidavit  of  any  one  of  the 
jurors. 

.'}.  Accident  or  surprise,  which  onlinary  prudence  could 
not  have  guarded  against. 

4.  Newly  discovered  evidence,  material  for  the  party 
making  the  application,  which  he  could  nuf  with  reasonable 
diligence,  have  discovered  and  produced  at  the  trial. 

5.  Excessive  damages,  appearing  to  have  been  given  under 
the  influence  of  passion  or  prejudice. 

(5.  Insufficiency  of  the  evidence  to  justify  the  verdict  oi' 
other  decision,  or  that  it  is  against  law. 

7.  Error  in  law  occurring  at  the  trial  and  excepted  to  l»y 
the  party  making  the  application. 

The  party  intending  to  move  for  a  new  trial  must,  within 
ten  days  after  the  verdict,  if  the  action  were  tried  by  a  jury, 
or  after  notice  of  the  decision  of  the  Court  or  referee,  if  the 
action  wore  trietl  without  a  jury,  Mlo  witli  the  Clerk  and  serve 
upon  the  adverse  party  a  notice  of  his  intention,  designating 
tbo  ground  upon  which  the  motion  will  V)e  made. 


li 


CHAPTER  XVII. 


fl 


ESTATES  OF  DECEASED  PERSONS. 

In  what  CDUiity  wills  puist  Ije  approved  and  letters  testi- 
mentary  or  of  administration  granteil: 

1.  In  the  county  of  which  the  deceaserl  was  a  resident  at 
tha  time  of  his  death,  in  whatever  place  he  may  have  died. 

2.  In  the  county  in  which  the  deceased  may  have  died, 
leaving  estate  therein,  he  not  being  a  resident  of  the  State. 

a.  In  till-  ct)unty  in  which  any  part  of  the  estate  may  \>v. 
the  deceased  having  died  out  of  the  State  and  not  resident 
therein  at  the  time  of  his  death. 


11: 


Chap.  17] 


Califouma. 


i»»> 

().> 


4.  In  the  CDunty  in  which  any  part  of  thu  estate  may  lie, 
the  (Jeceascd  not  being  a  resident  of  the  State,  and  not  leaving 
estate  in  the  county  in  which  he  died. 

.").  In  all  other  cases,  in  the  county  where  application  for 
letters  is  first  made. 

Order  of  persons  entitled  to  administer  : 
1.     The  surviving  husband  or  wife,  or  some  competent  per- 
son whom  lie  or  she  may  recjuest  to  have  appointed. 
•2.     The  children. 

3.  The  father  or  mother. 

4.  The  brothers. 

5.  The  sisters. 

().     The  grandchildren. 

7.  The  next  of  kin  entitleil  to  share  in  the  distribution  of 
the  estate. 

H.     The  Public  Ailininistrator. 

i>.     The  creilitors. 
10.     Any  person  legally  competent.  ' 

Atlministration  may  be  granted  to  one  or  more  competent 
persons,  although  not  otherwise  entitled  to  the  same,  at  the 
written  request  of  the  person  entitled.  Hied  in  the  Court. 

No  person  is  competent  or  entitled  to  .serve  as  administra- 
tor who  is: 

1st.     Under  the  age  of  majority. 

2d.     Not  a  boiut  fide,  resident  of  the  State. 

•id.     Convicted  of  an  infamous  crime. 

4th.  Adjudged  by  the  Court  incompetent  to  execute  the 
iluties  of  the  trust  l»y  reason  of  drunkenness,  improvidence,  or 
want  of  understanding  or  integrity. 

If  the  deceased  was  a  member  of  a  partnership  at  the  time 
of  his  decease,  the  surviving  partner  must  in  no  case  be  ap- 
pointed administrator  of  his  estate. 

A  married  woman  must  not  be  appointed  administratrix. 

Letters  of  udininistration  must  l)e  granted  to  any  applicant, 
though  it  api>ear.s  that  there  are  other  persons  having  better 
rights  to  the  administration,  wlien  such  person  fail  to  appear 
and  c     in  the  issuiuir  of  letters  to  themselves. 


¥ 


\m    • 

mu 

64 


Califouxia. 


[Part  3 


The  administrator  must  give  bonds,  with  two  or  more  suffi- 
cient sureties,  to  be  approveil  by  tlie  Superior  Judj^e,  the  penalty 
to  be  not  less  than  twice  the  value  of  the  personal  property, 
and  twice  the  probable  vabie  of  the  annual  rents,  profits  an<l 
issues  of  the  real  property ;  a<lilitioiuil  bonds  may  bo  rec^uireil 
when  a  sale  of  riial  estate  is  ordered. 

When  a  person  dies  leavinji*  a  widow  or  minor  children,  tin- 
widow  or  minor  children,  until  letter:,  are  (^ranted  and  the 
inventory  is  returned,  are  entitleil  to  r(.;iiiain  in  possession  of 
the  homestead,  of  the  wearing  apparel  of  the  family,  and  of  all 
the  household  furniture  of  the  decedent,  and  are  also  entitleil 
to  a  reasonable  provision  for  their  support,  to  be  allowed  by 
the  Superior  Court  or  a  Judge  thereof. 

The  Court  may  set  apart  for  the  use  of  the  surviving  hus- 
band or  wife,  ur  in  ease  of  his  or  her  death,  to  the  minor  children 
of  the  decedent,  all  property  exempt  from  execution,  including 
the  homestead  selected,  designated  and  vecordtnl ;  provided., 
such  homestead  was  selected  from  the  common  property,  or 
from  the  separate  property,  of  the  persons  selecting  or  joining 
in  the  selection  of  the  same.  If  none  has  been  selected,  desig- 
nated and  recorded,  or  in  case  the  homestead  was  selected  by 
the  survivor  out  of  the  separate  property  of  the  decedent,  the 
decedent  not  having  joined  therein,  the  Court  nuist  select, 
designate  and  set  apart,  and  cause  to  be  recorded,  a  homestead 
for  the  use  of  the  surviving  husband  or  wife  and  the  minor 
children;  or  if  there  be  no  surviving  husband  or  wife,  then  for 
the  use  of  the  minor  children,  out  of  the  conunon  property,  or 
if  there  be  no  conunon  property,  then  out  of  the  real  estate 
belonuins:  to  the  decedent. 

If  the  amount  set  apart  be  insufficient  for  the  support  of 
the  widow  and  children,  or  either,  the  Superior  Court  or  Judge 
must  make  such  reasonable  allowance  out  of  the  estate  as  shall 
be  necessary  for  the  maintenance  of  the  family,  according  to 
their  circumstances,  during  the  progress  of  the  settlement  of 
the  estate  ;  which,  in  case  of  an  insolvent  estate,  nmst  not  In- 
longer  than  one  year  after  granting  of  letters. 


Chap.  17] 


Calif<jrnia. 


(}.") 


If  on  tho  return  of  tlio  inventory  of  the  estate  of  an  intes- 
tate, it  appears  that  the  value  of  the  whole  estate  does  not 
exceed  the  sum  of  fifteen  hundred  dollars,  and  if  there  be  a 
widow  or  minor  chiltlren  of  deceased,  the  Court,  or  .Tudj:,'t; 
thereof,  shall,  by  order,  recjuire  all  persons  interested  to  appear 
on  a  fixed  day  and  show  cause  why  the  whole  estate  should  not 
he  assi<,'ned  for  the  use  of  the  family  of  deceased  after  the 
payment  of  the  expenses  of  the  last  illness,  funeral  expenses, 
and  expenses  of  administration. 

If  it  appear  that  the  value  of  tlui  wliole  estate  does  not 
exceed  the  sum  of  tlu'ce  thousand  dollars,  there  may  be  a  sum- 
mary administration  of  the  estate,  and  an  order  f)f  distribution 
at  the  end  of  six  months  after  the  issuinj^  of  letters. 

Claiins  against  the  estate  must  be  present«'<l  to  the  executor 
or  ailministrator  within  the  time  specified  in  the  notice  to  cre(l- 
itors,  re(|uesting  them  to  present  their  claims ;  when  the  value 
of  the  estate  exceeds  ten  thousand  dollars,  the  time  expres.sed 
in  the  notice  mu.st  be  ten  months;  when  it  does  not  excee<l  ten 
thousand  dollars,  four  months. 

All  claims  arisinf;  upon  contracts,  whether  the  same  Ite  due, 
not  due,  or  contingent,  must  be  presented  within  the  time 
limited  in  the  notice,  and  any  claim  not  so  ])re.sented  is  barred 
forever;  provided,  howeoer,  that  when  it  is  madi;  to  appear  by 
the  affidavit  of  the  claimant,  to  the  satisfaction  of  the  C'ourt,  or 
a  Judge  thereof,  that  the  claimant  had  no  notice  us  provided  in 
this  chapter,  by  reason  of  being  out  of  the  State,  it  may  l^e 
presented  at  any  time  before  a  decree  of  distribution  is  entered. 

Every  claim  which  is  due,  when  presented  to  the  executor 
i)V  ailministrator,  must  be  support»3d  by  the  affidavit  of  the 
(claimant,  or  some  one  in  his  behalf,  that  the  amount  is  justly 
due,  that  no  payments  have  l)een  nmde  thereon  whicli  are  not 
credited,  and  that  there  are  no  offsets  to  the  same,  to  the 
knowledge  of  the  affiant.  If  tlie  claim  be  not  du(j  when 
presented,  or  be  contingent,  the  particulars  of  such  claim  must 
lie  stated.  When  the  affidavit  is  made  by  a  person  other  than 
the  claimant,  he  must  set  forth  in  the  affidavit  the  rcastm  why 
it  is  not  made  by  the  claimant.     The  oath  may  be  taken  before 


66 


Califorxia. 


[Pftrt  n 


any  oiTicer  authorized  to  lulniinistor  oaths.  The  executor  or 
aihiiinistrator  may  also  rt'<|uirL'  satisfactory  vouchors  or  proofs 
to  be  pro(Uice<l  in  support  of  the  chiiiu.  If  the  estate  lie 
insolvent,  no  j^'rcater  rate  of  interest  shall  bo  allowed  upon  any 
claim  after  th(!  first  j)ublication  of  notice  to  creditors  than  is 
allowed  on  jud<,nnent  obtained  in  the  Superior  Court. 

Any  Jud<j;e  of  a  Superior  Court  may  present  a  claim  ajfainst 
the  estate  of  a  decedent  for  allowance  to  the  executor  oi' 
adndnistrator  thereof,  and  if  the  executor  or  administrator 
allows  the  claim,  he  must,  in  writinj^,  designate  some  other 
Judi,^e  of  the  Superior  Court  of  the  same  or  an  adjoining 
county,  who,  upon  tlu^  presentation  of  such  claim  to  him,  is 
vested  with  power  to  allow  or  reject  it,  and  the  Judge 
presenting  such  claim,  in  ca.se  of  its  rejection  by  the  (;xecutor 
or  administrator,  or  by  such  Judge  as  shall  have  acted  up(»n  it. 
has  the  same  right  to  .sue  in  a  proper  Court  for  its  recover}-  as 
other  persons  have  when  their  claims  against  an  estate  are 
rejected. 

When  a  claim,  accompanied  by  the  affidavit  reipiired  inthi^ 
chapter,  is  presented  to  the  executor  or  adnunistrator,  he  nnist 
indorse  thereon  his  allowance  or  rejection,  with  tho  day  an<l 
date  thereof.  If  he  allow  the  claim,  it  must  be  presented  to  a 
Ju<lge  of  the  Superior  Court  for  his  approval,  who  must  in  tlu' 
same  manner  indorse  upon  it  his  allowance  or  rejection.  If  the 
executor  or  adnunistrator,  or  the  Judge,  refu.se  or  neglect  tn 
indorse  such  allowance  or  rejection  for  ten  days  after  the  claim 
ha.s  »>een  presented  to  him,  such  refusal  or  neglect  may,  at  the 
opt'.m  of  the  claimant,  be  deemed  o(|uivalent  to  a  rejection  on 
the  tenth  day;  and  if  the  presentation  be  made  by  a  Notary, 
the  certificate  of  such  Notary,  under  seal,  shall  be  prima  faci< 
evidence  of  such  presentation  and  the  date  thereof.  If  tlic 
claim  bj  presented  to  the  executor  or  administrator  before  the 
expiration  of  the  time  limited  for  the  presentation  of  claim>', 
the  same  is  presented  in  time,  though  acted  upon  by  the  execu- 
tor or  administrator,  and  by  the  Judge  after  the  expiration  <ii' 
such  time.  If  the  claim  l»e  payabju  in  a  particular  kind  of 
money  or  currency,  it  shall,  if  allowed,  be  payable  only  in  sucli 
money  or  currency. 


I'art  '\ 


Chap.   17] 


California. 


«;7 


utor  i>r 
:  proofs 
tati'  1'f 
-)on  any 
than  is 

I  against 
cutor  <ii' 
nistrator 
ne  otlu'V 
vV)oinin;4 
0  him,  is 

!  executor 
(I  upon  it. 
icovery  as 
estate  ari' 

iruil  in  this 
ir,  he  must 
0  day  and 
sentcd  to  a 
iiust  in  thf 
on.  If  thf 
•  n(;<j;icct  tn 

Y  the  claiiu 
may,  at  the 
rejection  on 

V  a  Notary. 

wf.  If  th*' 
,r  Ijefore  tiu' 
II  of  cUiim-. 
y  the  execu- 
xpiration  ot 
ular  kind  <'t' 
only  in  sucli 


Every  claim  allowed  l»y  the  executor  or  administrator,  aiul 
approveil  liy  a  .Iudi,'e  of  the  Superior  C'ourt,  or  a  copy  thereof, 
as  hereinafter  provided,  nm.st,  within  thirty  days  thereafter,  be 
tiled  in  the  Court,  and  he  ranked  amor.;;  the  acknowledged  dehts 
of  the  estate,  to  he  paitl  in  due  course  of  administration.  If 
the  claim  he  founded  on  a  hond,  hill,  note,  or  any  other  instru- 
ment, a  copy  of  .such  instrument  nnist  accompany  the  claim, 
and  the  original  instrument  mu.st  be  exhlbiteil,  if  demanded, 
unless  it  ho  lost  or  destroyed,  in  which  case  the  claimant  must 
accompany  his  claim  by  his  affidavit,  containing  a  copy  or  pai- 
ticular  description  of  such  instrument,  and  stating  its  loss  or 
destruction.  If  the  claim,  or  any  part  thereof,  be  .secured  by  a 
mortgage  or  other  lien  which  has  been  recorded  in  the  office  of 
the  Recorder  of  the  county  in  which  the  land  atiected  by  it  lies, 
it  shall  be  .sufficient  to  describe  the  mortgage  or  lion,  and  refer 
til  the  date,  volume,  and  page  of  its  recoril.  If,  in  any'  case,  the 
(•hiiiiiant  has  left  any  original  voucher  in  the  hands  of  the 
executor  or  administrator,  or  suffered  the  same  to  be  tiled  in 
Court,  he  may  withdraw  the  same  when  a  copy  thereof  has 
iieen  already,  or  is  then,  attached  to  his  claim.  A  brief  descrip- 
tion of  every  claim  tiled  must  be  entered  by^  the  Clerk  in  the 
register,  showing  the  name  of  the  claimant,  the  amount  and 
character  of  the  claim,  rate  of  interest,  and  date  of  allowance. 

When  a  claim  is  rejected  either  by  the  executor  or  adminis- 
trator, or  a  Judge  of  the  Superior  Court,  the  holder  nmst  bring 
suit  in  the  proper  Court,  against  the  executor  or  administrator 
within  three  months  after  the  date  of  its  rejection,  if  it  be  then 
due,  or  within  two  months  after  it  becomes  due,  otherwise  the 
elaiui  shall  l»e  forever  barred. 

No  claim  must  be  allowed  by  the  executor  or  administrator  : 
or  liy  a  Judge  of  the  Superior  Court,  which  is  barred  by  the 
statute  of  limitations.  When  a  claim  is  jwesented  to  a  Judge 
for  his  allowance,  he  may,  in  his  discretion,  examine  the  claimant 
and  others  on  oath,  and  hear  any  legal  (evidence  touching  the 
validity  of  the  claim. 

Whenever  any  claim  is  presented  to  an  executor  or  adndn- 
istrator,  or  to  a  Judge,  and   he  is  willing  to  allow  the  same  in 


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68 


California. 


[Part  3 


part,  he  must  state  in  his  indorsement  the  amount  he  is  willing 
to  allow.  If  the  creditor  refuse  to  accept  the  amount  allowed 
in  satisfaction  of  his  claim,  he  shall  recover  no  costs  in  any 
action  therefor  brought  against  the  executor  or  administrator 
unless  he  recover  a  greater  amount  than  that  offered  to  be, 
allowed. 

A  judgment  rendered  against  an  executor  or  administrator, 
upon  any  claim  for  money  against  the  estate  of  his  testator  or 
or  intestate,  only  establishes  the  claim  in  the  same  manner  as 
if  it  had  been  allowed  by  the  executor  or  administrator  and 
a  Judge;  and  the  judgment  must  be  that  the  executor  or 
administrator  pay,  in  due  course  of  administration,  the  amount 
ascertained  to  be  due.  A  certified  transcript  of  the  original 
docket  of  the  judgment  must  be  filed  among  the  papers  of  the 
estate  in  Court.  No  execution  must  issue  upon  such  judgment, 
nor  shall  it  create  any  lien  upon  the  property  of  the  estate,  or 
give  to  the  judgment  creditor  any  priority  of  payment. 

Six  months  after  his  appointment,  and  at  any  time  when 
required  by  the  Court,  either  upon  its  own  motion  or  upon  the 
application  of  any  person  interested  in  the  estate,  the  executoi 
or  administrator  must  render,  for  the  information  of  the  Court, 
an  exhibit  under  oath,  showing  the  amount  of  money  received 
and  expended  by  him,  the  amount  of  all  claims  presentorl 
against  the  estate,  and  the  names  of  the  claimants,  and  all 
other  matters  necessaiy  to  the  condition  of  its  affairs. 

Every  executor  or  administrator  must  render  a  full  account 
and  a  report  of  his  administration  at  the  expiration  of  one  year 
from  the  time  of  his  appointment. 

Upon  the  settlement  of  the  accounts  at  the  end  of  the  year, 
as  required,  the  Court  must  make  an  order  for  the  payment  of 
the  debts,  as  the  circumstances  of  the  estate  require. 

In  case  of  the  death  of  any  employer,  the  wages  of  eacli 
miner,  mechanic,  salesman,  clerk,  servant  and  laborer,  for 
services  rendered  within  the  sixty  days  next  precoeding  tlie 
death  of  the  employer,  not  exceeding  one  hundred  dollars,  rank 
in  priority  next  after  the  funeral  expenses,  expenses  of  the  last 
sickness,  the  charges  and  expenses  of  .administering  upon  the 


Chap.  17] 


California. 


69 


estate,  and  the  allowance  to  the  widow  and  infant  children, 

and  must  be  paid  before  other  claims  against  the  estate  of  the 

deceased  person. 

The  debts  of  the  estate,  subject  to  the  foregoing  provision, 
must  be  paid  in  the  following  order : 

1.  Funeral  expenses.  , 

2.  The  expenses  of  the  last  sickness. 

3.  Debts  having  preference  by  the  laws  of  the  United 
States. 

4f,  Judgments  rendered  against  the  decedent  in  his  life  time, 
and  mortgages  in  the  order  of  their  date. 

5.     All  other  demands  against  the  estate. 

The  preference  in  the  case  of  a  mortgage  onlj-  extends  to 
the  proceeds  of  the  property  mortgaged.  The  deficiency,  if 
any,  must  be  classed  with  the  other  demands  against  the  estate. 


Compensation  to  Executors  a^rl  AHmir.ic.trqfn^'Q     .. 
Compensation  to  Executors  and  Administrators. 

When  no  conij)ensation  is  provided  by  the  will,  or  the  executor  renonnce,-? 
all  olaini  thereto,  he  must  be  allowed  commibsion  upon  the  amount  of  the 
estate  lucounted  for  by  him  as  follows:  on  first  $1000,  seven  per  cent.; 
for  all  above  that  sum  and  not  exceeding  |10,000,  five  per  cent.;  for  all 
above  *10,00()and  not  exceeding  $20,000,  four  per  cent;  for  all  above  $20,000 
not  exceeding  $50,000,  three  percent.;  for  all  above  $.50,000  and  not  exceeding 
$100,000,  two  per  cent.,  and  for  all  above  $1L>0,000  one  per  cent. 

Same  commiasion  allowed  to  administrators. 

Power  to  Mortgage  or  Lease. 

Whenever,  in  any  estate  now  being  administered,  or  that 
may  hereafter  be  administered,  it  shall  appear  to  the  Superior 
Court,  or  a  Judge  thereof,  to  be  for  the  advantage  of  the  estate 
to  raise  m.cney  by  a  mortgage  of  the  real  property  of  the  de- 
ceJuut,  or  any  part  thereof,  or  to  make  a  lease  of  said  realty, 
or  any  part  thereof,  the  Court  or  Judge,  as  often  as  occasion 
thereof  shall  arise  in  the  administration  of  any  estate,  may,  on 
a  petition,  notice,  and  hearing  as  provided  for,  authorize,  em- 
power, and  direct  the  executor  or  administrator  to  mortgage 
or  lease  such  real  estate,  or  any  part  thereof. 


70 


California. 


[Part  3 


CHAPTER  XVIII. 

•  SUCCESSION. 

The  property,  both  real  and  personal,  of  one  who  dies  with- 
out disposing  of  5t  by  will,  passes  to  the  heirs  of  the  intestate 
subject  to  the  control  of  the  Probate  Court,  and  to  the  possession 
of  any  administrator  appointed  by  that  Court  for  the  purpose  of 
administration. 

When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract  dies,  without  disposing  of  tlie 
estate  by  will,  it  is  succeeded  to,  and  must  be  distributed,  subject 
to  the  payment  of  his  debts,  in  the  following  manner : 

1.  If  the  decedent  leaving  a  surviving  husband  or  wife,  and 
only  one  child,  or  the  lawful  issue  of  one  child,  in  equal  shares 
to  the  surviving  husband  or  wife  and  child,  or  issue  of  sucli 
child.  If  the  decedent  leave  a  surviving  husband  or  wife, 
and  more  than  one  child  living,  or  one  child  living  and  the 
lawful  issue  of  one  or  more  deceased  children,  one-third  to  the 
surviving  husband  or  wife,  and  the  remainder  in  equal  shares 
to  his  children,  and  to  the  lawful  issue  of  any  deceased  cliild 
by  right  of  representation ;  but  if  there  be  no  child  of  the 
decedent  living  at  his  rleath,  the  remainder  goes  to  all  of  his 
lineal  descendants ;  and  if  all  the  descendants  are  in  the  same 
degree  of  kindred  to  the  decedent,  they  .share  equally ;  other- 
wise they  take  according  to  the  right  of  representation.  If  the 
decedent  leave  no  surviving  husband  or  wife,  but  leave  issue, 
the  whole  estate  goes  to  such  issue ;  and  if  such  issue  consists 
of  more  than  one  ch'lil  living,  or  one  child  living  and  the  lawful 
issue  of  one  or  more  deceased  children,  then  the  estate  goes  in 
eciual  shares  to  the  children  living,  or  to  the  child  living,  and 
the  issue  of  the  deceased  child  or  children,  by  right  of 
representation. 

2.  If  the  decedent  leaves  no  issue,  the  estate  goes,  one-half 
to  the  surviving  husband  or  wife,  and  the  other  half  to  tlie 


Chap.  18] 


California. 


71 


decedent's  father  and  mother,  in  equal  shares,  and  if  eitlier  bo 
(load,  the  whole  of  said  half  goes  to  the  other  ;  if  there  be  no 
father  or  mother,  then  one-half  goes  in  equal  shares  to  the 
brothers  and  sisters  of  the  decedei>v,  and  to  the  ehildeen  of  any- 
deceased  brother  or  sister  by  right  of  representation.  If  the 
decedent  leave  no  issue,  nor  husband,  nor  wife,  the  estate  must 
go  to  his  father  and  mother,  in  e(iual  shares,  or  if  either  be 
dead,  then  to  the  other. 

3.  If  there  be  neither  issue,  husband,  wife,  father  nor  mother, 
then  in  equal  shares  to  the  brothers  and  sisters  of  the  decedent, 
and  to  the  children  of  any  deceased  brother  or  sister  by  right  of 
representation. 

5.  If  the  decedent  leave  a  surviving  husband  or  wife,  and 
neither  issue,  father,  mother,  brother,  nor  sister,  the  whole 
estate  goes  to  the  surviving  husband  or  wife. 

G.  If  the  decedent  leave  neither  issue,  husband,  wife; 
father,  mother,  brother,  nor  sister,  the  estate  must  go  to  the 
next  of  kin  in  equal  degree,  excepting  that  when  there  are  two 
or  more  collateral  kindred  in  equal  degree,  but  claiming  through 
different  ancestors,  those  who  claimed  through  the  nearest  an- 
cestors must  be  preferred  to  those  claiming  through  an  ancestor 
more  remote. 

7.  If  the  decedent  leaves  several  children,  or  one  child,  and 
the  issue  of  one  or  more  children,  and  any  such  surviving  child 
dies  under  age,  and  not  having  been  married,  all  the  estate 
that  came  to  the  deceased  child  by  inheritance  from  such 
'iocedent,  descends  in  e(|ual  shares  to  the  other  children  of  the 
same  parent,  and  to  the  issue  of  any  such  other  children  who 
are  dead,  by  right  of  representation. 

8.  If  at  the  death  of  such  child,  who  dies  under  age,  not 
having  been  married,  all  the  other  children  of  his  parents  arc 
also  dead,  and  any  of  them  have  left  issue,  the  estate  that  came 
to  such  child  by  inheritance  from  his  parents  descends  to  the 
issue  of  all  other  children  of  the  same  parent ;  and  if  all  the 
issue  are  in  the  same  degree  of  kindred  to  the  child,  they  share 
the  estate  e(|ually,  otherwise  they  take  according  to  the  right 
of  representation. 


|;ii 

■li 

i  |i 

1 

iM  u 

^j 

u)9^9'^ 

^^A. 

78 


California. 


[Part  3 


9.  If  the  decedent  be  a  widow  or  widower,  and  leave  no 
kindred,  and  the  estate,  or  any  portion  thereof,  wps  common 
property  of  such  decedent,  and  his  or  her  deceased  spouse,  while 
such  spouse  was  living,  such  common  property  shall  go  to  the 
father  of  such  deceased  spouse,  or  if  he  be  dead,  to  the  mother. 
If  there  be  no  father  nor  mother,  then  such  property  shall  go 
to  the  brothers  and  sisters  of  such  deceased  spouse,  in  equal 
shares,  and  to  the  lawful  issue  of  any  deceased  brother  or  sister 
of  such  deceased  spouse,  by  right  of  representation. 

10.  If  the  decedent  have  no  husband,  wife  or  kindred,  and 
there  be  no  heirs  to  take  his  estate,  or  any  portion  thereof, 
under  subdivision  nine  of  this  section,  the  same  escheats  to  the 
State  for  the  support  of  common  schools. 

The  above  provisions,  as  to  the  inheritance  of  the  husband 
and  wife  from  each  other,  apply  only  to  the  separate  property 
of  the  decedents. 

Upon  the  death  of  the  wife,  the  entire  community  property, 
without  administration,  belongs  to  the  surviving  husband, 
except  such  portion  thereof  as  may  have  been  set  apart  to 
her  by  judicial  decree,  for  her  support  and  maintenance,  which 
portion  is  subject  to  her  testamentary  disposition,  and  in  the 
absence  of  such  disposition  goes  to  her  descendents  or  heirs 
exclusive  of  her  husband. 

Upon  the  death  of  the  husband,  one-half  of  the  community 
property  goes  to  the  .surviving  wife  and  the  other  half  is 
subject  to  the  testamentary  disposition  of  the  husband,  and  in 
the  absence  of  such  disposition  goes  to  his  descendants  equally, 
if  such  descendants  are  in  the  same  degree  of  kindred  to  the 
decedent ;  otherwise,  according  to  the  right  of  representation , 
and  in  the  absence  of  botli  such  dispositions,  and  such 
descendants,  is  subject  to  distribution  in  the  same  manner  as 
the  separate  property  of  the  husband.  In  case  of  the  dissolution 
of  the  community  by  the  death  of  the  husband,  the  entire 
community  property  is  equally  subject  to  his  debts,  the  family 
allowance,  and  the  charges  and  expenses  of  administration. 

Every  illegitimate  child  is  an  heir  of  the  person  who,  in 


writing. 


signed 


in    the    presence    of   a   competent   witness, 


•art  3 


Chap.  18] 


California. 


73 


ive  no 

H 

mmon 

H 

while 

H 

to  the 

H 

:iother. 

H 

Iiall  go 

■ 

I  e(iual 
r  sister 

1 

ed,  and 

I 

thereof, 

H 

s  to  the 

I 

lUsband 

I 

)roporty 

I 

roper  ty, 
lUsband, 

1 

apart  to 
;e,  which 

I 

d  in  the 

H 

,  or  heirs 

1 

nununity 

1 

r  half   is 

H 

id,  and  in 

'  ''i^™ 

s  equally, 
red  to  the 

1 
J 

sentation : 

"■3 

1 

and    such 

' 

nanner  as 

■  ■.*■ 

lissolution 

■A 

the  entire 

■  'I 

the  family 

ration. 

[    1 

on  who,  in 

it   witness, 

r  ■  '■—. 

acknowledges  himself  to  be  the  father  of  such  child ;  and  in  all 
cases  is  an  heir  of  his  mother;  and  inherits  his  or  her  estate, 
in  whole  or  in  part,  as  the  case  may  be,  in  the  same  manner  as 
if  he  had  been  born  in  lawful  wedlock;  but  he  does  not  represent 
his  father  or  mother  by  inheriting  any  part  of  the  e-state  of  his 
or  her  kindred,  either  lineal  or  collateral,  unless,  before  his 
death,  his  parents  shall  have  intermarried,  and  his  father,  after 
such  marriage,  acknowledges  him  as  his  child,  or  adopts  him 
into  his  family;  in  which  case  such  child  and  all  the  legitimate 
children  are  considered  brothers  and  sisters,  and  on  the  death  of 
either  of  them  intestate,  and  without  issue,  the  others  inherit 
his  estate,  and  are  heirs,  as  hereinbefore  provided,  in  like 
manner,  as  if  all  the  childx'en  had  been  legitimate;  saving  to 
the  father  and  mother,  respectively,  their  rights  in  the  estates 
of  all  the  children  in  like  manner  as  if  all  had  been  legitimate. 
The  issue  of  all  marriages  null  in  law,  or  dissolved  by  divorce, 
are  legitimate. 

If  an  illegitimate  child,  who  has  not  been  acknowledged  or 
adopted  by  his  father,'  dies  intestate,  without  lawful  issue,  his 
estate  goes  to  his  mother,  or  in  case  of  her  decease,  to  her  heirs 
at  law. 


CHAPTER  XIX. 

LIENS    OF     MECHANICS    AND    OTHERS    UPON 
REAL  PROPERTY. 

Mechanics,  material  men,  contractors,  sub -contractors, 
artisans,  architects,  machinists,  builders,  miners,  and  all  persons 
and  laborers  of  every  class,  performing  labor  upon  or  furnishing 
materials  to  be  used  in  the  construction,  alteration,  addition  to, 
or  repair,  either  in  whole  or  in  part,  of  any  building,  wharf, 
bridge,  ditch,  flume,  aqueduct,  tunnel,  fence,  machinery,  railroad, 
wagon  road,  or  other  structure,  .shall  have  a  lien  upon  the 
property  upon  which  they  have  bestowed  labor,  or  furnished 
materials,  for  the  value  of  such  labor  done  and  materials 
i'urnished,  whether  at  the  instance  of  the  owner  or  of  any  other 


'M!' 


74 


California. 


[Part  3 


person  acting  bj'  his  authority,  or  under  him,  as  contractor  or 
otherwise;  and  any  person  who  performs  labor  in  any  mining 
claim  or  claims,  has  a  lien  upon  the  same,  and  the  works  owned 
and  used  by  the  owners  for  reducing  the  ores  from  such  mining 
claim  or  claims,  for  the  work  or  labor  done,  or  materials 
furnished  by  each  respectively,  whether  done  or  furnished  at 
the  instance  of  the  owner  of  the  building  or  other  improvement, 
or  his  agent;  and  every  contractor,  sub-contractor,  architect, 
builder,  or  other  person,  having  charge  of  any  mining,  or  of 
the  construction,  alteration,  addition  to,  or  repair,  either  in 
whole  or  in  part,  of  any  building  or  other  improvement  as 
aforesaid,  shall  be  held  to  be  the  agent  of  the  owner,  for 
purposes  of  this  chapter.  In  case  of  a  contract  for  the  work, 
between  the  reputed  owner  and  his  contractor,  the  lien  shall 
extend  to  the  entire  contract  price,  and  such  contract  shall 
operate  as  a  lien  in  favor  of  all  persons,  except  the  contractor, 
to  the  extent  of  the  whole  contract  price;  and  after  all  such 
liens  are  satisfied,  then  as  a  lien  for  any  balance  of  the  coix.ract 
price  in  favor  of  the  contractor.  All  such  contracts  shall  bo  in 
writing  when  the  amount  agreed  to  be  paid  thereunder  exceeds 
one  thousand  dollars,  and  shall  bo  subscribed  by  the  parties 
thereto,  and  the  said  contract,  or  a  memorandum  thereof, 
setting  forth  the  names  of  all  the  parties  to  the  contract,  a 
description  of  the  property  to  be  affected  thereby,  together 
with  a  statement  of  the  general  character  of  the  work  to  be 
done,  the  total  amount  to  be  paid  thereunder,  and  the  amounts 
of  all  partial  payments,  together  with  the  times  when  such 
payments  shall  be  due  and  payable,  shall,  before  the  work 
is  commenced,  be  tiled  in  the  office  of  the  County  Recorder  of 
the  county,  or  city  and  county,  where  the  property  is  situated, 
who  shall  receive  one  dollar  for  such  filing;  otherwise  they 
shall  be  wholly  void,  and  no  recovery  shall  be  had  thereon  by 
either  party  thereto;  and  in  such  case,  the  lab(jr  done  and 
materials  furnished  by  all  persons  aforesaid,  except  the 
contractor,  shall  be  deemed  to  have  been  done  and  furnisheil 
at  the  personal  instance  of  the  owner,  and  they  shall  huvo  n 
lien  for  the  value  thereof 


Chap.  19] 


California. 


n 


No  part  of  the  contract  price  shall,  by  the  terms  of  any 
such  contract,  be  made  payable,  nor  shall  the  same  or  any  part 
thereof  be  paid  in  advance  of  the  commencement  of  the  work, 
liut  the  contract  price  shall,  by  the  terms  of  the  contract,  be 
made  payable  in  installments  at  specified  times  after  the 
commencement  of  the  work,  or  on  the  completion  of  specified 
portions  of  the  work,  or  on  the  completion  of  the  whole  work; 
provided,  that  at  least  twenty-five  per  cent,  of  the  whole  con- 
tract price  shall  be  made  payable  at  least  thirty-five  days  after 
the  final  completion  of  the  contract.  No  payment  made  prior 
to  the  time  when  the  same  is  due,  under  the  terms  and  con- 
ditions of  the  contract,  shall  be  valid  for  the  purpose  of  defeat- 
ing, diminishing,  or  discharging  any  lien  in  favor  of  any  person, 
except  the  contractor,  but  as  to  such  liens,  such  payment  shall 
be  deemed  as  if  no^  made,  and  shall  be  applicable  to  such  liens, 
notwithstanding  that  the  contractor  to  whom  it  was  paid  may 
thereafter  abandon  his  contract,  or  be  or  become  indebted  to 
the  reputed  owner  in  any  amount  for  damages  or  otherwise, . 
for  non-performance  of  his  contract  or  otherwise.  As  to  all 
liens,  except  that  of  the  contractor,  the  whole  contract  price 
shall  be  payable  in  money,  and  shall  not  be  diminished  by  any 
prior  or  subsequent  indebtedness,  offset,  or  counterclaim,  in  favor 
of  the  reputed  owner  and  against  the  contractor ;  no  alteration 
of  any  such  contract  shall  affect  any  lien  acquired  under  the 
provisions  of  this  chapter.  In  case  such  contracts  and  altera- 
tions thereof  do  not  conform  substantially  to  the  provisions  of 
this  section,  the  labor  done  and  materials  furnished  by  all 
persons  except  the  contractor  shall  be  deemed  to  have  been 
done  and  furnished  at  the  personal  instance  and  request  of  the 
person  who  contracted  with  the  contractor,  and  they  shall  have 
a  lien  for  the  value  thereof.  Any  of  the  persons  mentioned  in 
section  eleven  hundred  and  eighty-three,  except  the  contractor, 
may  at  any  time  give  to  the  reputed  owner  a  written  notice 
that  they  have  performed  labor  or  furnished  materials,  or  both, 
to  the  contractor,  or  other  person  acting  by  authority  of  the 
reputed  owner,  or  that  they  have  agreed  to  do  so,  stating  in 
general  terms  the  kind  of  labor  and  materials,  and  the  name  of 


ii 


I  i' 
I 


f 

ii 


76 


California. 


[Part  .3 


the  person  to  or  for  whom  the  same  was  done  or  furnished,  or 
both,  and  the  amount  in  value,  as  near  as  may  be,  of  that  al- 
ready done  or  furnished,  or  both,  and  of  the  whole  agreed  to 
be  done  or  furnished,  or  both.  Such  notice  may  be  given  by 
delivering  the  same  to  the  reputed  owner  personally,  or  by 
leaving  it  at  his  residence  or  place  of  business,  with  some  per- 
son in  charge,  or  by  delivering  it  to  his  architects,  or  by  leaving 
it  at  their  residence  or  place  of  business,  with  some  person  in 
charge,  or  by  posting  it  in  a  conspicuous  place  upon  the  mining 
claim  or  improvement.  No  such  notice  shall  be  invalid  bj- 
reason  of  any  defect  of  form,  provided  it  is  sufficient  to  inform 
the  reputed  owner  of  the  substantial  matters  herein  provided 
for,  or  to  put  him  upon  inquiry  as  to  such  matters.  Upon  such 
notice  being  given,  it  shall  be  the  duty  of  the  person  who  con- 
tracted with  the  contractor  to,  and  he  shall,  withhold  from  his 
contractor,  or  from  any  other  person,  acting  under  such  reputed 
owner,  and  to  whom  by  said  notice  the  said  labor  or  materials, 
or  both,  have  been  furnished,  or  agreed  to  be  furnished,  suffi- 
cient money  due,  or  that  may  become  due  to  such  contractor, 
or  other  person,  to  answer  such  claim  and  any  lien  that  maj'  be 
filed  therefor  for  record  under  this  chapter,  including  counsel 
fees  not  exceeding  one  hundred  dollars  in  each  case,  besides 
reasonable  costs  provided  for. 

Every  original  contractor,  within  sixty  days  after  the  com- 
pletion of  his  contract,  and  every  person,  .save  the  original 
contractor,  claiming  the  benefit  of  this  chapter,  must,  within 
thirty  days  after  the  completion  of  any  building,  improvement, 
or  structure,  or  after  the  completion  of  the  alteration,  addition 
to,  or  repair  thereof,  or  the  performance  of  any  labor  in  a  min- 
ing claim,  file  for  record  with  the  County  Recorder  of  the  county 
in  which  such  property,  or  some  part  thereof,  is  situated,  a 
claim  containing  a  statement  of  his  demand,  after  deducting  all 
just  credits  and  offsets,  with  the  name  of  the  owner  or  reputed 
owner,  if  known,  and  also  the  name  of  the  person  by  whom  he 
was  employed,  or  to  whom  he  furnished  the  materials,  with  a 
statement  of  the  terms,  time  given,  and  conditions  of  his  con- 
tract, and  also  a  description  of  the  property  to  be  charged  with 


Chap.  19] 


California. 


W 


the  lien  sufficient  for  identification,  which  claim  must  be  veri- 
fi jd  by  the  oath  of  himself,  or  of  some  other  person  ;  any  trivial 
imperfection  in  the  said  work,  or  in  the  construction  of  any 
building,  improvement,  or  structure,  or  of  the  alteration,  addi- 
tion to,  or  repair  thereof,  shall  not  be  deemed  such  a  lack  of 
completion  as  to  prevent  the  filing  of  any  lien ;  and  in  case  of 
contracts,  the  occupation  or  use  of  the  building,  improvement, 
or  structure  by  the  owner,  or  his  representative,  or  the  ac- 
ceptance by  said  owner  or  his  agent  of  said  building,  improve- 
ment, or  structure,  shall  be  deemed  conclusive  evidence  of 
completion  ;  and  cessation  from  labor  for  thirty  days  upon  any 
unfinished  contract  or  upon  any  unfinished  building,  improve- 
ment, or  structure,  or  the  alteration,  addition  to,  or  repair 
thereof,  shall  be  deemed  equivalent  to  a  completion  thereof  for 
all  the  purposes  herein. 

The  land  upon  which  any  building,  improvement,  or 
structure  is  constructed,  together  with  a  convenient  space  about 
the  same,  or  so  much  as  may  be  required  for  the  convenient 
use  and  occupation  thereof,  to  be  determined  by  the  court  on 
rendering  judgment,  is  also  subject  to  the  lien,  if,  at  the 
conmiencement  of  the  work,  or  of  the  furnishing  of  the 
materials  for  the  same,  the  land  belonged  to  the  person  who 
caused  said  building, improvement,  orstructure  to  be  constructed, 
altered,  or  repaired;  but  if  such  person  owned  less  than  a  fee 
simple  estate  in  such  land,  then  only  his  interest  therein  is 
subject  to  such  lien. 

Improvements  constructed  upon  any  land  with  the  knowledge 
of  the  owner  are  held  to  be  constructed  at  the  instance  of  the 
ownur  of  the  lands,  unless  he,  within  three  days  after  he  shall 
have  received  knowledge  of  the  construction,  alteration,  or  re- 
pair, or  intended  construction,  alteration,  or  repair,  give  notice 
that  -he  will  not  be  responsible  for  the  same,  by  posting  a  notice 
in  writing  on  the  premises  in  a  conspicuous  place  to  that  effect. 
Such  liens  are  preferred  to  any  lien,  mortgage  or  other 
incumbrance  which  may  have  attached  sub.sequent  to  the  time 
when  the  building,  improvement  or  structure  was  commenced 


11 


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11 

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1 

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1  1 

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7s 


California. 


[Part  ti 


work  done,  or  materials  wore  coinuiencod  to  be  furnished  ;  also, 
to  any  lien,  mortgage  or  other  incumbrance,  of  which  the  lien- 
holder  had  no  notice,  and  which  was  unrecorded  at  the  time 
the  building,  improvement  or  structure  was  commenced,  work 
done,  or  the  niaterials  were  commenced  to  be  furnished. 

The  lien  does  not  bind  any  building,  minin  '  claim,  improve- 
ment or  structure,  for  a  longer  period  than  ninety  days  after 
the  same  has  been  filed,  unless  proceedings  be  commenced  in  si 
proper  Court  within  that  time  to  enforce  the  same ;  or  if  a 
credit  be  given,  tlien  ninety  days  after  the  expiration  of  sucli 
credit;  but  no  lien  continues  in  force  for  a  longer  time  than 
two  years  from  the  time  the  work  is  completed,  by  an  agreement 
to  give  credit. 

In  every  case  in  which  different  liens  are  asserted  against 
any  property,  the  Court  in  the  judgment  must  declare  the  rank 
of  each  lien  or  class  of  liens,  which  shall  be  in  the  following 
order,  viz.: 

First — All  persons  performing  manual  labor  in,  on  or  about 
the  same. 

Second — Persons  furni.shing  materials. 

Third — Sub-contractors. 

Fourth — Original  contractors. 

And  the  proceeds  of  the  sale  of  the  property  must  be  applied 
to  each  lien,  or  class  of  liens,  in  the  order  of  its  rank  ;  and 
whenever,  in, the  sale  of  the  property  subject  to  the  lien,  there 
is  a  deficiency  of  proceeds,  judgment  may  be  docketed  for  tlie 
deficiency. 

Any  number  of  persons  claiming  liens  may  join  in  the  same 
action,  and  when  separate  actions  are  commenced  the  Court 
may  consolidate  them.  The  Court  must  also  allow  as  part  of 
the  costs  the  money  paid  for  filing  and  recording  the  lien,  and 
reasonable  attorney's  fees  in  the  Superior  and  Supreme  Courts, 
such  costs  and  attorney's  fees  to  be  allowed  to  each  lien  claim- 
ant, whose  lien  is  established,  whether  he  be  plaintiflf  or  de- 
fendant, or  whether  they  all  join  in  one  action,  or  separate  actions 
are  consolidated.     Whenever   materials  shall  have  been  fur- 


Chap.  1!)] 


California. 


n 


nishu''  for  use  in  the  construction,  alteration,  or  repair  of  any 
l)uililing  or  other  iniprovement,  such  materials  shall  not  be 
subject  to  attachment,  execution,  or  other  hjgal  process,  to  en- 
force any  debt  due  by  the  purchaser  of  such  materials,  except 
a  debt  due  for  the  purchase  money  thereof,  so  long  as  in  good 
faith  the  same  are  about  to  be  applied  to  th«.  ■  nstruction, 
alteration,  or  repair  of  such  building,  mining  clai;>j.  or  other 
improvement. 

In  a  judgment  enforcing  a  mechanics'  lien  >  per.su.ial  judg- 
ment cannr>tbe  rendered  against  those  defendants  against  whom 
no  persoiiui  claim  ia  established. 


CHAPTER  XX. 

LIENS  FOR  SALARIES  AND  WAGES  AND  OTHER 

LIENS. 

In  all  assignments  of  property,  made  bj-  any  person  to  trus- 
tees or  assignees,  on  account  of  the  inability  of  the  person,  at 
the  time  of  the  assignment,  to  pay  his  debts,  or  in  proceedings 
in  insolvency,  the  wages  of  the  miners,  mechanics,  salesmen, 
servants,  clerks  or  laborers  employed  by  such  person,  to  the 
amount  of  one  hundred  dollars  each,  and  for  service  rendered 
within  sixty  days  previously,  are  preferred  claims,  and  must 
be  paid  by  such  trustees  or  assignees  before  any  other  creditor 
or  creditors  of  the  assignor. 

In  case  of  the  death  of  any  employer,  the  wages  of  each 
miner,  mechanic,  salesman,  clerk,  servant  and  laborer,  for  ser- 
vices rendered  within  the  sixty  days  next  preceding  the  death 
of  the  employer,  not  exceeding  one  hundred  ^^ollars,  rank  in 
priority  next  after  the  funeral  expenses,  expenses  of  the  last 
sickness,  the  charges  and  expenses  of  administering  upon  the 
estate,  and  the  allowance  to  the  widow  and  infant  children, 
and  nmst  be  paid  before  other  claims  against  the  estate  of  the 
deceased  person. 


California. 


[Part  3 


In  cases  of  execution,  attachments,  and  writs  of  a  similar 
nature,  issued  against  any  person,  except  for  claims  for  labor 
done,  any  miners,  mechanics,  salesmen,  servants,  clerks  and 
laborers,  who  have  claims  against  the  defendant  for  labor  done, 
may  give  notice  of  their  claims  and  the  amount  thereof,  sworn 
to  by  the  person  making  the  claim,  to  the  creditor  and  the 
officer  executing  either  of  such  writs,  at  any  time  before  the 
actual  sale  of  the  property  levied  upon ;  and  unless  such  claim 
is  disputed  by  the  debtor  or  a  creditor,  such  officer  must  pay 
to  such  person,  out  of  the  proceeds  of  the  sale,  the  amount  each 
is  entitled  to  receive  for  such  services  rendered  within  the 
sixty  days  next  preceeding  the  levy  of  the  writ,  not  exceeding- 
one  hundred  dollars.  If  any  or  all  of  the  claims  so  presented, 
and  claiming  preference,  are  disputed  by  either  the  debtor  or  a 
creditor,  the  person  presenting  the  same  must  commence  an 
action  within  ten  days  for  the  recovery  thereof,  and  must  pros- 
ecute his  action  with  due  diligence,  or  be  forever  barred  from 
any  claim  of  priority  of  payment  thereof;  and  the  officer  shall 
retain  possession  of  so  much  of  the  proceeds  of  the  sale  as  may 
be  necessary  to  satisfy  such  claim,  until  the  determination  of 
such  action ;  and  in  case  judgment  be  had  for  the  claim,  or  any 
part  thereof,  carrying  costs,  the  costs  taxable  therein  shall  like- 
wise be  a  preferred  claim,  with  the  same  rank  as  the  original 
claim. 

The  debtor  or  creditor  intending  to  dispute  a  claim  pre- 
.sented  shall,  within  ten  days  after  receiving  notice  of  such 
claim,  serve  upon  the  claimant  and  the  officer  executing  the 
writ,  a  statement  in  writing,  verified  by  the  oath  of  the  debtor 
or  the  person  disputing  such  claim,  setting  forth  that  no  part 
of  said  claim,  or  not  exceeding  a  sum  specified,  is  justly  due 
from  the  debtor  to  the  claimant,  for  services  rendered  within 
the  sixty  days  next  preceding  the  levy  of  the  writ.  If  tlu' 
claimant  bring  suit  on  a  claim  which  is  cMsputed  in  part  only, 
and  fail  to  recover  a  sum  exceeding  that  which  was  admitted 
to  be  due,  he  shall  not  recover  costs,  but  costs  shall  be  adjudged 
against  him. 


I 


1 

■St 

I 


Chap.  20] 


California. 


m 


other  Liens. 

One  who  sells  personal  property  has  a  special  lien  thereon, 
dependent  on  possession,  for  its  price,  if  in  his  possession,  when 
the  price  becomes  payable. 

Every  person  who,  while  lawfully  in  possession  of  an  article 
of  personal  property,  renders  any  service  to  the  owner  thereof 
by  labor  or  skill  employed  for  the  protection,  improvement, 
safekeeping,  or  carriage  thereof,  has  a  special  lien  thereon, 
dependent  on  possession  for  the  compensation,  if  any,  which  is 
due  to  him  from  the  ownei  for  such  service ;  and  livery  or 
boarding  or  feed-stable  proprietors,  and  persons  pasturing 
horses  and  stock,  have  liens,  dependent  on  possession,  for  their 
compensation  in  caring  for,  boarding,  or  pasturing  such  horses 
or  stock. 

Any  person  who  makes,  alters,  or  repairs  any  article  of 
personal  property  at  the  request  of  the  owner  or  legal  possessor 
of  the  property,  has  a  lien  on  the  same  for  his  reasonable 
charges  for  work  done  and  materials  furnished,  and  may  retain 
possession  of  the  same  until  the  charges  are  paid. 

A  factor  has  a  general  lien,  dependent  on  possession,  for  all 
that  is  due  to  him  as  such,  upon  all  articles  at  commercial  value 
that  are  intrusted  to  him  by  the  same  principal. 

A  banker  has  a  general  lion,  dependent  on  possession,  upon 
all  property  in  his  hands  belonging  to  a  customer,  for  the  bal- 
ance due  to  him  from  such  customer  in  the  course  of  the 
business. 

Hotel  men,  boarding-house  and  lodging-house  keepers,  have 
a  lien  on  baggage  and  other  property  of  their  guests,  dependent 
on  possession,  for  board,  lodging  and  room  rent. 

A  person  who  labors  at  cutting,  hauling,  rafting,  or  driving 
logs  or  lumber,  or  who  performs  any  labor  in  o^  .:*bout  a  log- 
ging-camp, necessary  for  the  getting  out  or  transportation  of 
logs  or  lumber,  shall  have  a  lien  thereon  for  the  amount  due 
for  his  personal  services,  vvhich  shall  take  precedence  of  all  other 
claims,  to  continue  for  thirty  days  after  the  logs  or  lumber 


i.i. 


^ 


I,  P   !| 


!^:|i; 


82 


California. 


[Part  3 


arrive  at  the  place  of  destination,  for  sale  or  manufacture  ;  suit 
to  foreclose  the  same  shall  be  commenced  in  the  proper  Court 
within  twenty-five  da3's  from  the  time  the  same  is  filed. 


CHAPTER  XXI. 
ARBITRATIONS. 

Persons  capable  of  contracting  may  submit  to  arbitration 
any  contx'over.sy  which  might  be  the  subject  of  a  civil  action 
between  them,  except  a  question  of  title  to  real  property  in  fee 
or  for  life. 

The  submission  to  arbitration  must  be  in  writing,  and  may 
be  made  to  one  or  more  persons. 


CHAPTER  XXn. 
HOMESTEADS. 

The  homestead  consists  of  the  dwelling-house  in  which  the 
claimant  resides,  and  the  land  on  which  the  same  is  situated, 
selected  as  hereinafter  provided.  It  may  be  used  as  a  place  of 
business,  but  actual  residence  is  essential. 

Homesteads  may  be  selected  and  claimed  : 

1.  Not  exceeding  five  thousand  dollars  in  value,  by  any 
head  of  a  family. 

2.  Not  exceeding  one  thousand  dollars  in  value,  by  any 
other  person. 

The  phrase  "  head  of  a  family,"  includes  within  its  meaninn': 

1.  The  husband,  when  the  claimant  is  a  married  person. 

2.  Every  person  who  has  residing  on  the  premises  with 
him  or  her,  and  under  his  or  her  care  and  maintenance,  either : 

(1.)  His  or  her  minor  child,  or  the  minor  child  of  his  or  her 
deceased  wife  or  husband. 


Chap.  22] 


California. 


83 


(2.)  A  minor  brother  or  sister,  or  the  minor  child  of  a 
deceased  brother  or  sister. 

(3.)    A  father,  mother,  grandfather,  or  grandmother. 

(4.)  The  father,  mother,  grandfather,  or  grandmother  of  a 
deceased  husband  or  wife. 

(.5.)  An  unmarried  .sister,  or  any  other  of  the  relatives 
mentioned  who  have  attained  the  age  of  majority,  and  are 
unable  to  support  themselves. 

The  declaration  of  homestead  must  be  executed,  acknowl- 
edged, and  duly  recorded  in  the  office  of  the  Recorder  of  the 
county  in  which  the  land  is  situated.  From  and  after  the  time 
the  declaration  is  filed  for  record,  the  premises  therein  described 
constitute  a  homestead. 

The  homestead  is  subject  to  execution  or  forced  sale,  in 
.satisfaction  of  judgments  obtained  : 

1.  Before  the  delaration  of  homestead  was  filed  for  record, 
and  which  constitute  liens  upon  the  premises. 

2.  On  debts  secured  by  mechanics,  contractors,  sub-con- 
tractors, artisins,  architects,  builders,  laborers  of  every  class, 
material  men's  or  vendors'  liens  upon  the  premises. 

.'}.  On  debts  secured  by  mortgages  upon  the  premises,  exe- 
cuted and  acknowledged  by  the  husband  and  wife,  or  an 
unmarried  claimant. 

4.  On  debts  secured  by  mortgages  upon  the  premises,  exe- 
cuted and  recorded  before  the  declaration  of  homestead  was  filed 
for  record. 

The  homestead  of  a  married  person  cannot  be  conveyed  or 
encumbered,  unless  the  instrument  is  executed  and  acknowl- 
edo'ed  by  both  hu.sband  and  wife. 

If  the  homestead  exceed  in  value  the  amount  of  the  home- 
stead exemption,  the  excess  may  be  reached  on  execution,  but 
the  property  must  be  first  appraised,  upon  application  to  the 
Superior  Judge. 

The  homestead  may  be  abandoned  by  filing  in  the  office 
where  the  declaration  is  filed,  a  declaration  of  abandonment 
duly  executed. 


84 


California, 


[Part  3 


CHAPTER  XXIII. 
CORPORATIONS. 

Corporations  are  either  public  or  private.  Public  corpor- 
ations are  formed  or  organized  for  the  government  of  a  portion 
of  the  State;  all  other  corporations  are  private. 

Private  corporations  may  be  formed  by  the  voluntary  asso- 
ciation of  any  five  or  more  persons.  A  majority  of  such  per- 
sons must  be  residents  of  this  State.  They  may  be  formed  for 
any  purpose  for  which  individuals  may  lawfully  associate 
themselves. 

The  owners  of  shares  in  a  coporation  which  has  a  capital 
stock  are  called  stockholders.  If  a  corporation  has  no  capital 
stock,  the  corporators  and  their  successors  are  called  members. 

Each  stockholder  of  a  corporation  is  individually  and  per- 
sonally liable  for  such  portions  of  its  debts  and  liabilities  as 
the  amount  of  stock  or  shares  owned  by  him  bears  to  tlie 
whole  of  the  subscribed  capital  stock  or  shares  of  the  corpor- 
ation, and  for  a  like  proportion  only  of  each  debt  or  claim 
against  the  corporation.  Any  creditor  of  the  corporation  may 
institute  joint  or  several  actions  against  any  of  its  stockholders, 
for  the  proportion  of  his  claim  payable  by  each,  and  in  such 
action  the  Court  nmst  ascertain  the  proportion  of  the  claim  or 
debt  for  which  each  defendant  is  liable,  and  a  several  judgment 
must  be  rendered  against  each  in  conformity  therewith.  If 
any  stockhoMer  pays  his  proportion  of  any  debt  due  from  the 
corporation,  incurred  while  he  was  such  stockholder,  he  is  re- 
lieved from  any  further  personal  liability  for  such  debt;  and  if 
an  action  has  been  brought  against  him  upon  such  debt,  it  shall 
be  dismissed,  as  to  him,  upon  his  paying  the  costs,  or  such  pro- 
portion thereof  as  may  be  properly  chargeable  against  him. 
The  liability  of  each  stockholder  is  determined  by  the  amount 
of  stock  or  shares  owned   by  him  at  the  time  the  debt  or 


Chap.  23] 


California. 


85 


liability  was  incurred;  and  such  liability  is  not  released  by 
any  subsequent  transfer  of  stock.  The  term  stockholder,  as 
used  in  this  section,  shall  apply  not  only  to  such  persons  as 
appear  by  the  books  of  the  corporation  to  be  such,  but  also  to 
every  equitable  owner  of  stock,  although  the  same  appear  on 
the  books  in  the  name  of  another;  and  also,  to  every  person 
who  has  advanced  the  installments  or  purchase-money  of  stock 
in  the  name  of  a  minor,  so  long  as  the  latter  remains  a  minor ; 
and  also,  to  every  guardian,  or  other  trustee,  who  voluntarily 
invests  any  trust  funds  in  the  stock.  Trust  funds  in  the  hands 
of  a  guardian,  or  trustee,  shall  not  be  liable  under  the  provis- 
ions of  this  section,  by  reason  of  any  such  investment,  nor 
shall  the  person  for  whose  benefit  the  investment  is  made  be 
responsible  in  respect  to  the  stock  until  he  becomes  competent 
and  able  to  control  the  same,  but  the  responsibility  of  the  guar- 
dian or  trustee  making  the  investment  shall  continue  until 
that  period.  Stock  held  as  collateral  security,  or  by  a  trustee, 
or  in  any  other  representative  capacity,  does  not  make  the 
holder  thereof  a  stockholder  within  the  meaning  of  this  section, 
except  in  the  cases  above  mentioned,  so  as  to  charge  him  with 
any  proportion  of  the  debts  or  liabilities  of  the  corporation; 
hut  the  pledgor,  or  person,  or  estate  represented,  is  to  be  deemed 
the  stockholder,  as  respects  such  liability.  In  corporations 
having  no  capital  stock,  each  member  is  individually  and  per- 
son>illy  liable  for  his  pioportion  of  its  debts  and  liabilities,  and 
suuuar  actions  may  bo  brought  against  him,  either  alone  or 
jointly  with  other  members,  to  enforce  such  liability,  as  by  this 
section  may  be  brought  against  one  or  more  stockholders,  and 
similar  judgments  may  be  rendered.  The  liability  of  each 
stockholder  of  a  corporation  formed  under  the  laws  of  any 
other  State  or  Territory  of  the  United  States,  or  of  any  foreign 
country,  and  doing  business  within  this  State,  shall  be  the 
same  as  the  liability  of  a  stockholder  of  a  corporation  created 
umler  the  Constitution  and  laws  of  this  State. 

The  directors  or  trustees  of  corporations  and  joint-stock 
associations  shall  be  jointly  and  severally  liable  to  the  creditors 
and  stockholders  for  all  moneys  embezzled  or  misappropriated 


? 


m 


86 


California. 


[Part  3 


by  the  officers  of  such  corporation  or  joint-stock  associations 
during  the  term  of  office  of  such  director  or  trustee.  Contracts 
to  relieve  directors  or  trustees  from  this  liability  are  null  and 
void. 

A  corporation  may  be  dissolved  by  the  Superior  Court  of 
the  county  where  its  principle  place  of  business  is  situated, 
ur  on  its  voluntary  application  for  that  purpose. 


CHAPTER  XXIV. 
MODE  OF  TAKING  TESTIMONY  OP  WITNESSES. 

The  testimony  of  witnesses  is  taken  in  three  modes,  viz.: 

1.  By  affidavit. 

2.  By  deposition. 

3.  By  oral  examination. 

An  affidavit  is  a  written  declaration,  under  oath,  made 
without  notice  to  the  adverse  party. 

A  deposition  is  a  written  declaration,  under  oath,  made  upon 
notice  to  the  adverse  party,  for  the  purpose  of  enabling  him  to 
attend  and  cross-examine. 

An  oral  examination  is  an  examination  in  presence  of  the 
jury  or  tribunal  which  is  to  decide  the  fact,  or  act  upon  it; 
the  testimony  being  heard  by  the  jui'y  or  tribunal  from  the  lips 
of  the  witness. 

Depositions  must  be  taken  in  the  form  of  question  and 
answer,  and  the  words  of  the  witness  must  be  written  down, 
unless  the  parties  agree  to  a  different  mode. 

Affidavits  are  used  to  verify  pleadings,  or  to  prove  service 
of  papers,  and  such  like. 

Testimony  of  witnesses  out  of  this  State  may  be  taken  by 
deposition  at  any  time  after  service  of  summons,  or  the 
appearance  of  the  defendant. 

Testimony  of  witnesses  in  this  State  may  be  taken  by  de- 
position, in  any  action,  at  any  time  after  the  service  of  the 


Chap.  24] 


California. 


87 


summons,  or  the  appearance  of  the  defendant,  in  the  following 
cases : 

1.  When  the  witness  is  a  party  to  the  action  or  proceeding, 
or  an  officer,  or  member  of  a  corporation  which  is  a  party  to 
the  action  or  proceeding,  or  a  person  for  whose  immediate  benefit 
the  action  or  proceeding  is  prosecuted  or  defended. 

2.  When  the  witness  resides  out  of  the  county  in  which 
the  testimony  is  to  be  used. 

3.  When  a  witness  is  about  to  leave  the  county  where  the 
action  is  to  be  tried,  and  will  probably  continue  absent  when 
the  testimony  is  required. 

4.  When  the  witness,  otherwise  liable  to  attend  the  trial. 
is  nevertheless  too  infirm  to  attend. 

5.  When  the  testimony  is  required  upon  a  motion,  or  in 
any  other  case  where  the  oral  examination  of  the  witness  is  not 
required. 

6.  When  the  witness  is  the  only  one  who  can  establish 
facts,  or  a  fact  material  to  the  issue ;  provided,  that  the  deposi- 
tion of  such  witness  shall  not  be  used  if  his  presence  can  be 
procured  at  the  time  of  the  trial  of  the  cause. 

The  deposition  of  a  witness  out  of  this  State  may  be  taken 
upon  commission  issued  from  the  Court,  under  the  seal  of  the 
Court,  upon  an  order  of  the  Court,  or  a  Judge  thereof,  on  the 
application  of  either  party,  upon  five  days  previous  notice  to 
the  other.  If  issued  to  any  place  within  the  United  States,  it 
may  be  directed  to  a  person  agreed  upon  by  the  parties,  or,  if 
they  do  not  agree,  to  any  Judge  or  Justice  of  the  Peace,  or 
Commissioner,  selected  by  the  Court  or  Judge  issuing  it.  If 
issued  to  any  country  out  of  the  United  States,  it  may  be 
directed  to  a  Minister,  Embassador,  Consul,  Vice-Consul,  or 
Consular  Agent  of  the  United  States  in  such  country,  or  to  any 
person  agreed  upon  by  the  parties. 

The  deposition  of  a  witness  in  this  State  may  be  taken  by 
either  party  before  a  Judge,  or  officer  authorized  to  administer 
oaths,  on  serving  upon  the  adverse  party  previous  notice  of  the 
time  and  place  of  examination,  together  with  a  copy  of  an  affi- 


iSlMi 


88 


California. 


[Part  3 


davit,  showing  that  it  is  a  case  wherein  deposition  may  be  used. 
Such  notice  must  be  at  least  five  days,  adding  also  one  day  for 
every  twenty-five  miles  of  the  distance  of  the  place  of  exami- 
nation from  the  residence  of  the  person  to  whom  the  notice  is 
given,  unless  for  a  cause  shown,  a  Judge,  by  order,  prescribes  a 
shorter  time.  When  a  shorter  time  is  prescribed,  a  copy  of  the 
order  must  be  served  with  the  notice. 


*.''  ' 


CHAPTER  XXV. 


JUDICIAL  RECORDS,  HOW  PROVED. 

A  judicial  record  is  the  record  or  official  entiy  of  the  pro- 
ceedings in  a  Court  of  Justice,  or  of  the  official  act  of  a  judicial 
officer,  in  an  action  or  special  proceeding. 

A  judicial  record  of  this  State,  or  of  the  United  States,  may 
be  proved  by  the  production  of  the  original,  or  of  a  copy  thereof, 
certified  by  the  Clerk  or  other  person  having  the  legal  custody 
thereof.  That  of  a  sister  State  may  be  proved  by  the  attesta- 
tion of  the  Clerk  and  the  seal  of  the  Court  annexed,  if  there  be 
a  Clerk  and  seal,  together  with  a  certificate  of  the  chief  Judge 
or  presiding  Magistrate,  that  the  attestation  is  in  due  form. 

A  judicial  record  of  a  foreign  country  may  be  proved  by 
the  attestation  of  the  Clerk,  with  the  seal  of  the  Court  annexed, 
if  there  be  a  Cle^'k  and  seal,  or  of  the  legal  keeper  of  the  record, 
with  the  seal  of  his  office  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  chief  Judge  or  presiding  Magistrate, 
that  the  person  making  the  attestation  is  the  Clerk  of  the  Court 
or  the  legal  keeper  of  the  recoixl ;  and  in  either  case,  that  the 
signature  of  such  person  is  genuine,  and  that  the  attestation  is 
in  due  form.  The  signature  of  the  chief  Justice  or  presiding 
Magistrate  must  be  authenticated  by  the  certificate  of  the  Min- 
ister or  Embassador,  or  a  Consul,  Vice-Consul,  or  Consular 
Agent  of  the  United  States  in  such  foreign  country. 


'art  3 


Chap.  25] 


California. 


89 


3  used. 
lay  for 
Bxami- 
otice  is 
•ribes  a 
'  of  the 


the  pro- 
i  judicial 

ites,  may 
\f  thereof, 
I  custody 
e  attesta- 
f  there  be 
ief  Judge 
form. 
)roved  by 
annexed, 
the  record, 

together 
Magistrate, 
;  tlie  Court 
e,  that  the 
testation  is 

presiding 
of  the  Min- 

Consulav 


A  copy  of  the  judicial  record  of  a  foreign  country  is  also 
admissible  in  evidence,  upon  proof  : 

1.  That  the  copy  offered  has  been  compared  by  the  witness 
with  the  original,  and  is  an  exact  transcript  of  the  whole  of  it. 

2.  That  such  original  was  in  the  custody  of  the  Clerk  of 
the  Court,  or  other  legal  keeper  of  the  same;  and, 

3.  That  the  copy  is  duly  attested  by  a  seal,  which  is  proved 
to  be  the  seal  of  the  Court  where  the  record  remains,  if  it  be 
the  record  of  a  Court ;  or  if  there  be  no  such  seal,  or  if  it  be  not 
a  record  of  a  Court,  by  the  signature  of  the  legal  keeper  of  the 
original. 


CHAPTER  XXVI. 

ACKNOWLEDGMENTS. 

The  proof  or  acknowledgment  of  an  instrument  may  be 
made  at  any  place  within  this  State,  before  a  Justice  or  Clerk 
of  the  Supreme  Court,  or  Judge  of  a  Superior  Court. 

The  proof  or  acknowledgment  of  an  instrument  may  be 
made  in  this  State  within  the  city,  city  and  county,  county  or 
district,  for  which  the  officer  was  elected  or  appointed,  before 
either : 

A  Clerk  of  a  Court  of  Record ;  or, 

A  Court  Commissioner;  or, 

A  County  Recorder;  or, 

A  Notary  Public;  or, 

0.  A  Justice  of  the  Peace. 

The  proof   or  acknowledgment  of   an  instrument  may  be 

made  without  this  State,  but  within  the  United  States,  and 

within  the  juri.sdiction  of  the  officer,  before  either  : 

1.  A  Justice,  Judge,  or  Clerk  of  any  Court  of  Record  of 
the  United  States;  or, 

2.  A  Justice,  Judge,  or  Clerk  of  any  Court  of  Record  of 
any  State ;  or. 


1. 

2. 

3. 
4. 


90 


California. 


[Part  3 


|T^ 


3.  A  Commissioner  appointed  by  the  Governor  of  this  State 
for  that  purpose;  or, 

4.  A  Notary  Public;  or, 

5.  Any  other  officer  of  the  State  where  the  acknowledff- 
ment  is  made,  authorized  by  its  laws,  to  take  such  proof  (n- 
acknowledgment. 

A  proof  or  acknowledgment  of  an  instrument  may  be  made 
without  the  United  States,  before  either: 

1.  A  Minister,  Commissioner,  or  Charge  d' Affaires  of  the 
United  States,  resident  and  accredited  in  the  country  where 
the  proof  or  acknowledgment  is  made;  or, 

2.  A  Consul,  Vice-Consul,  or  Consular  Agent  of  the  United 
States,  resident  in  the  country  where  the  proof  or  acknowledg- 
ment is  made;  or, 

3.  A  Judge  of  a  Court  of  Record  of  the  county  where 
the  proof  or  acknowledgment  is  made ;  or, 

4.  Commissioners  appointed  for  such  purposes  by  the 
Governor  of  the  State,  pursuant  to  special  statutes;  or, 

5.  A  Notary  Public. 

If  any  of  the  above-named  officers  are  authorized  by  law 
to  appoint  a  deputy,  the  acknowledgment  or  proof  may  be 
taken  by  such  deputy  in  the  name  of  his  principal. 

The  acknowledgment  of  an  instrument  must  not  be  taken 
unless  the  officer  taking  it  knows,  or  has  satisfactory  evidence 
on  the  oath  or  affirmation  of  a  credible  witness,  that  the  person 
making  such  acknowledgment  is  the  individual  who  is  de- 
scribed in  and  who  executed  the  instrument;  or  if  executed  by 
a  corporation,  that  the  person  making  such  acknowledgment  is 
the  President  or  Secretary  of  such  corporation. 

The  acknowledgment  of  a  married  woman  to  an  instrument 
purporting  to  be  executed  by  her  must  not  be  taken,  unless  she 
is  made  acquainted  by  the  officer  with  the  contents  of  the  in- 
strument, on  an  examination  without  the  hearing  of  her  hus- 
band; nor  certified,  unless  she  thereupon  acknowledges  to  the 
officer  that  she  executed  the  instrument,  and  that  she  does  not 
wish  to  retract  such  execution. 


>art  3 

}  State 


wledg- 
•oof  ov 


te 


maJe 


j  of  the 
f  where 

',  United 
owleclg- 

y  where 

by   the 

d  by  law 
may  be 


:   I 


Chap.  26] 


State  of- 


California. 
General  Form  of  Certificate. 


91 


County  of- 
On  this  — 


ss. 


day  of ,  in  the  year .before  me, 

[here  insert  the  name  and  quality  of  the  officer]  personally 
appeared ,  known  to  me  [or  proved  to  me  on  the  oath  of 


]  to  be  the  person  whose  name  is  subscribed  to  the  v;ithin 

instrument,  and  acknowledged  to  me  that  he  [or  they]  executed 
the  same. 


Form  of  Certificate  of  Acknowledgment  by  Married 

Women. 


State  of- 


CouNTY  of 

On  this day  of 


iss. 


-,  in  the  year 


before   me, 


[here  insert  the  name  and  quality  of  the  officer]  personally  ap- 
peared   ,  known  to  me  [or  proved  to  me  on  the  oath  of 

]  to  be  the  person  whose  name  is  subscribed  to  the  within 


instrument,  described  as  a  married  woman;  and  upon  an  exam- 
ination without  the  hearing  of  her  husband,  I  made  x' 
acquainted  with  the  contents  of  the  instrument;  and  thereupon 
she  acknowledged  to  me  that  she  executed  the  same,  and  that  she 
does  not  wish  to  retract  such  execution. 


Form  of  Certificate  of  Acknowledgment  by  a 
Corporation. 

State  of "| 


County  of 

On  this day  of- 


J 


ss. 


-,  in  the  year 


before  me, 


[here  insert  the  name  and  quality  of  the  officer]  personally  ap- 
peared   ,  known  to  me  [or  proved  to  me  on  the  oath  of 

-]  to  be  the  President  [or  the  Secretary]  of  the  corpora- 


tion that  executed  the  written  instrument,  and  acknowledged 
to  me  that  such  corporation  executed  the  same. 


t  :i 


t!    i 


H.         , 


**:'  i 


02 


California. 


[Part  .'i 


Form  of  Certificate  of  Acknowledgment  by  Attorney 

in  Fact. 


State  of- 


COUNTY    OF- 

On  this  — 


ss. 


■  day  of 


in  th 


e  year 


before  mo 


]here  insert  the  name  and  quality  of  the  officer]   personally 

appeared ,  known  to  me  [or  proved  to  me  on  the  oath  of 

]  to  be  the  person  whoso  name  is  subscribed  to  the  within 

instrument  as  the  attorney  in  fact  of ,  and  acknowledged 

to  me  that  he  subscribed  the  name thereto,  as  principal, 

and  his  own  name  as  attorney  in  fact. 

Officers  mustauthenticate  their  certificates  by  affixing  thereto 
their  signatures,  followed  by  the  names  of  their  offices ;  also 
their  seals  of  office,  if  by  the  laws  of  the  State  or  country  where 
the  acknowledgment  or  proof  is  taken,  or  bj'  authority  of 
which  they  are  acting,  they  are  required  to  have  official  seals. 

The  certificate  of  proof  or  acknowledgment,  if  made  before 
a  Justice  of  the  Peace,  when  used  in  any  county  other  than  thai 
in  which  he  resides,  must  be  accompanied  by  a  certificate  under 
the  hand  and  seal  of  the  Clerk  of  the  county  in  which  the 
Justice  resides,  setting  forth  that  such  Justice,  at  the  time  of 
taking  such  proof  or  acknowledgment,  was  authorized  to  take 
the  same,  and  that  the  Clerk  is  acquainted  with  his  handwrit- 
ing, and  believes  that  the  signature  to  the  orignal  certificate  is 
genuine. 


CHAPTER  XXVII. 

PARTNERSHIPS. 

Partnership  is  the  association  of  two  or  more  persons  for 
the  purpose  of  carrying  on  business  together,  and  dividing  its 
profits  between  them. 

Every  partnership  that  is  not  formed  in  accordance  with 
the  law  concerning  mining  or  special  partnerships,  and  evory 


Chap.  27] 


California. 


93 


special  partner.ship,  so  far  only  as  the  general  partners  are 
concerned,  is  a  general  partnership. 

Every  general  partner  is  agent  for  the  partnership  in  the 
transaction  of  its  business,  and  has  authority  to  do  whatever  is 
necessary  to  carry  on  such  business  in  the  ordinary  manner, 
and  for  this  purpose  may  bind  his  co-partners  by  an  agreement 
in  writing. 

A  partner,  as  such,  has  not  authority  to  do  any  of  the  fol- 
lowing acts,  unless  his  co-partners  have  wholly  abandoned  the 
business  to  him,  or  are  incapable  of  acting: 

1.  To  make  an  assignment  of  the  partnership  property 
or  any  portion  thereof  to  a  creditor,  or  to  a  third  person  in 
trust,  for  the  benefit  of  a  creditor  or  of  all  creditors. 

2.  '^o  dispose  of  the  good  will  of  the  business. 

3.  To  dispose  of  the  whole  of  the  partnership  property  at 
once,  unless  it  consists  entirely  of  merchandise. 

4.  To  do  any  act  which  would  make  it  impossible  to  carry 
on  the  ordinary  business  of  the  partnership. 

.5.     To  confess  a  judgment. 

G.    To  submit  a  partnership  claim  to  arbitration. 

7.  To  do  any  act  which  is  not  necessary  to  carry  on  such 
l)usiness  in  the  ordinary  manner. 

Every  general  partner  is  liable  to  third  persons  for  all  the 
obligations  of  the  partnership,  jointly  with  his  co-partners. 

Any  one  permitting  himself  to  be  represented  as  a  partner, 
general  or  special,  is  liable  as  such  to  third  persons  to  whom 
such  representation  is  communicated,  and  who,  on  the  faith 
thereof,  give  credit  to  the  partnership. 

The  liability  of  a  general  partner  for  the  acts  of  his  co-part- 
ners continues,  even  after  a  dissolution  of  the  co-partnership, 
in  favor  of  persons  who  have  had  dealings  with  and  given 
credit  to  the  partnership  during  its  existence,  until  they  have 
had  personal  notice  of  the  dissolution ;  and  in  favor  of  other 
persons  until  such  dissolution  has  been  advertised  in  a  news- 
paper published  in  every  county  where  the  partnership,  at  the 
time  of  its  dissolution,  had  a  place  of  business,  if  a  newspaper 
is  there  published,  to  the  extent  in  either  case  to  which  such 


PI  !■; 


ii 


fl 


m 


California. 


[Part  3 


persons  part  with  value  in  good  faith,  and  in  the  belief  that 
such  partner  is  still  a  member  of  the  firm. 

After  the  dissolution  of  partnership,  any  general  partner 
may  act  in  liquidation  of  its  affairs,  unless  the  liquidation  is 
committed,  by  consent  of  all  the  partners,  to  one  or  more  of 
them;  and  in  such  case  the  others  have  no  right  to  act  therein, 
but  their  acts  are  valid  in  favor  of  persons  parting  with  value, 
in  good  faith,  upon  credit  thereof. 

A  partner  authorized  to  act  in  liquidation  may  collect, 
compromise,  or  release  any  debts  due  to  the  partnership,  pay  or 
compromise  any  claims  against  it,  and  dispose  of  the  partner- 
ship property;  and  he  may  indorse,  in  the  name  of  the  firm, 
promissory  notes  or  other  obligations  held  by  the  partnership, 
for  the  purpose  of  collecting  the  same ;  but  he  cannot  create 
any  new  obligation  in  its  name,  or  revive  a  debt  against  the 
firm  by  an  acknowledgment,  when  an  action  thereon  is  barred. 

Except  as  hereafter  provided,  every  partnership  transacting 
business  in  this  State  under  a  fictitious  name,  or  a  designation 
not  showing  the  names  of  such  persons  interested  as  partners 
in  such  business,  nmst  file  with  the  Clerk  of  the  county  in 
which  its  principal  place  of  business  is  situated,  a  certificate 
stating  the  names  m  full  of  all  the  members  of  such  partnership 
and  their  places  of  residence,  and  publish  the  same  once  a  week 
for  four  successive  weeks  in  a  newspaper  published  in  the 
county,  if  there  be  one,  and  if  there  be  none  in  such  county, 
then  in  a  newspaper  published  in  an  adjoining  county. 

A  commercial  or  banking  partnership,  established  and  trans- 
acting business  in  a  place  without  the  United  States,  may, 
without  filing  the  certificate  or  making  the  publication  hereto- 
fore mentioned,  use  in  this  State  the  partnership  name  used  by 
it  there,  although  it  be  fictitious,  or  do  not  show  the  names  of 
the  persons  interested  as  partners  in  such  business. 

The  certificate  filed  with  the  Clerk  must  be  signed  by  the 
partners,  and  acknowledged  before  some  officer  authorized  to 
take  the  acknowledgment  of  conveyances  of  real  property. 
Where  the  partnership  is  formed  after  the  first  of  July,  eighteen 


Chap.  27] 


California. 


hundred  and  seventy-four,  the  certificate  must  be  filed  and  the 
publication  made  within  one  month  after  the  formation  of  the 
partnership,  or  within  one  month  from  the  time  designated  in 
the  agreement  of  its  members  for  the  commencement  of  the 
partnership.  Where  the  partnership  lias  been  formed  prior  to 
the  first  of  July,  eighteen  hundred  and  seventy-four,  the  certi- 
ficate must  be  filed  and  the  publication  made  within  six  months 
after  the  first  of  July,  aforesaid. 

On  every  change  in  the  members  of  a  partnership  transact- 
ing business  in  this  State  under  a  fictitious  name,  or  a  designa- 
tion which  does  not  show  the  names  of  the  persons  interested 
as  partners  in  its  business  (except  in  the  case  of  a  commercial 
or  banking  partnership,  established  and  transacting  business  in 
a  place  without  the  United  States,  as  well  as  in  this  State).,  a 
new  certificate  must  bo  filed  and  a  new  publication  made,  as  is 
required  on  the  formation  of  such  partnership. 

Persons  doing  business  as  partners  contrary  to  the  aforesaid 
provisions,  shall  not  maintain  any  action  upon  or  on  account  of 
any  contract  made  or  transactions  had  in  their  partnership-name, 
in  any  Court  of  this  State,  until  they  have  first  filed  the  certi- 
ficate and  made  the  publication  required.  Copies  of  the  entries 
of  a  County  C.Vrk,  when  cetcified  by  him,  and  affidavits  of 
publication  made  by  the  printer,  publisher,  or  chief  clerk  of  a 
newspaper,  are  presumptive  evidence  of  the  facts  therein  stated. 

Special  partnerships  are  formed  by  filing  a  certificate  with 
the  County  Clerk  and  Recorder,  severally  signed,  stating : 

1.  The  name  under  which  partnership  is  to  be  conducted- 

2.  The  general  nature  of  the  business  intended  to  be 
transacted. 

3.  The  names  of  all  the  partners,  and  their  residence, 
specifying  which  are  general  and  which  are  special  partners. 

4.  The  amount  of  capital  which  each  special  partner  has 
contributed  to  the  capital  stock. 

5.  The  periods  at  which  such  partnerships  shall  begin  and 
end. 

Affidavits  must  be  made  and  filed,  setting  forth  the  amount 
actually  contributed  by  the  special  partners. 


ip 


•vi  ;!! 


1 

!■ 

li^ 

iSl 

;■  'I 

|k 

1 

1  ' '  '- 

iiiii 

i:! 

Mi 

■;  .'If 
i   ■  i 

III 

m\ 

'  :ij 

1 

ll 

1. 

J     '1 

1     -  j- 

;■   ■!    ■' 

r 

5"  ,■:!' 
,1  - ' 

ij  1  : 

:  1 
1 

11 


li 


96 


California. 


[Part  3 


The  certificate  mentioned  must  be  puolished  in  a  newspaper 
in  the  county,  once  a  week  for  four  successive  weeks. 

The  general  partners  in  a  special  partnership  are  liable  to 
the  same  extent  as  partners  in  a  general  partnership.  The 
contribution  of  a  special  partner  to  the  capital  of  the  firm,  and 
the  increase  thereof,  is  liable  for  its  debts,  but  he  is  not  other- 
wise liable  therefor. 


CHAPTER  XXVIII. 
MARRIED  WOMEN. 

All  property  of  the  wife  owned  by  '^er  before  marriage, 
and  that  acquired  afterward  by  gift,  bequjst,  devise,  or  descent 
with  the  rents,  issues,  and  profits  thereof,  is  her  separate  prop- 
erty. All  property  owned  by  the  husband  before  marriage 
and  that  acquired  afterward  by  gift,  beqvest,  devise,  or  descent 
with  the  rents,  issues,  and  profits  thereof,  is  his  separate  prop- 
erty. All  other  property  acquired  after  marriage,  by  either 
husband  or  wife,  or  both,  is  community  property.  The  earn- 
ings of  the  wife  are  not  liable  for  the  debts  of  the  husband. 
The  earnings  and  accumulations  of  the  wife,  and  her  minor 
children  living  with  her  and  in  lier  custody,  while  she  is  living- 
separate  from  her  husband,  are  the  separate  property  of  the 
wife. 

The  separate  property  of  the  wife  is  not  liable  for  the  debts 
of  her  husband,  but  is  liable  for  her  own  debts,  contracted  bo- 
fore  or  after  marriage.  The  separate  property  of  the  husband 
is  not  liable  for  the  debts  of  the  wife  contracted  before  marriage, 
The  property  of  the  community  is  not  liable  for  the  contracts 
of  the  wife  made  after  marriage,  unless  secured  by  a  pledge  or 
mortgage  thereof  executed  by  the  husband. 

The  husband  has  the  management  and  control  of  the 
community  property,  with  the  like  absolute  power  of  disposi- 


c 


*  \ 


.ill 


Chap.  28] 


California. 


97 


tion  (other  than  testamentary)  as  he  has  of  his  separate  estate. 
No  estate  in  dower  is  allotted  to  ti^e  wife  upon  the  death  of 
her  husband. 

If  the  liusband  neglects  to  make  adecjuate  provision  for  the 
support  of  his  wife,  any  other  person  may,  in  ^ood  faith,  supply 
her  with  articles  necessary  for  her  support,  and  recover  the 
reasonable  value  thereof  from  the  husband;  except  that  a 
husband  abandoned  hy  his  wife  is  not  liable  for  her  support 
until  she  otiers  to  return,  unless  she  was  justified  hy  his  mis- 
conduct, in  abandoning  him;  nor  is  he  liable  for  her  support 
when  she  is  living  separate  from  him  by  agreement,  unless 
such  support  is  stipulated  in  the  agreement. 

A  married  woman  may  become  a  sole  trader  by  the  judg- 
ment of  the  Superior  Court  of  the  county  in  which  she  has 
resided  for  six  months  next  preceding  the  application. 

A  certified  copy  of  the  decree  of  the  Court  must  be  recorded 
in  the  office  of  the  Recorder  of  the  county  where  the  business 
is  to  be  carried  on. 

A  sole  trader  is  entitled  to  carry  on  the  business  specified, 
in  her  name,  and  the  property,  revenues,  moneys  and  credits  so 
l)y  her  invested,  and  the  profits  thereof,  belonging  exclusively 
to  her,  and  are  not  liable  for  any  debts  of  her  husband.  The 
husband  of  a  sole  trader  is  not  liable  for  any  debts  contracted 
by  her  in  the  course  of  her  sole  trader's  business,  unless  con- 
tracted upon  his  written  consent. 


CHAPTER  XXIX. 

MINORS. 

Minors  are  males  under  twenty-one  years  of  age,  females 
under  eighteen  years  of  age. 

A  minor  cannot  give  a  delegation  of  power,  nor,  under  the 
iige  of  eighteen  make  a  contract  relating  to  real  property,  oi' 
any  interest  therein,  or  relating  to  any  personal  property  not 
in  his  immediate  possession  or  control.  A  minor  may  nuxke 
any  other  contract  in  thes  ame  manner  as  an  adult,  subject  to 


98 


California. 


[Part  3 


I 


.  (     :   ,  I  I  i'l  -. 


T^ 


1 


i  i' 


his  power  of  disaffirmness.  A  minor  cannot  disaffirm  a  con- 
tract, otherwise  valid,  to  pay  the  reasonable  value  of  things 
necessary  for  his  support,  or  that  of  his  family  entered  into  by 
him  when  not  under  the  care  of  a  parent  or  guardian  able  to 
provide  for  him  or  them.  Nor  can  a  minor  disaffirm  an  obli- 
gation, otherwise  valid,  entered  into  by  him  under  the  express 
authority  or  direction  of  a  statute.  In  all  other  cases,  the 
contract  of  a  minor,  if  made  whilst  he  is  under  the  age  of 
eighteen,  may  be  disaffirmed  by  the  minor  himself,  either  be- 
fore his  majority,  or  within  a  reasonable  time  afterward ;  or  in 
case  of  his  death  within  that  period,  by  his  heirs  or  personal 
representatives  ;  and  if  the  contract  be  made  by  the  minor 
whilst  he  is  over  the  age  of  eighteen,  it  may  be  disaffirmed  in 
like  manner,  upon  restoring  the  consideration  to  the  party  from 
whom  it  was  received,  or  paying  its  equivalent. 

If  a  parent  neglect  to  provide  articles  necessary  for  his 
child,  who  is  under  his  charge,  according  to  his  circumstance.^ 
a  third  person  may  in  good  faith  supply  such  necessaries,  and 
recover  the  reasonable  value  thereof  from  the  parent. 

A  minor  may  enforce  his  rights  by  civil  action,  or  other 
legal  proceedings,  in  the  same  manner  as  a  person  of  full  age. 
except  that  a  guaixlian  must  conduct  the  same. 


CHAPTER  XXX. 

STOPPAGE  IN  TRANSIT. 

A  seller  or  consignor  of  property,  whose  claim  for  its  price 
or  proceeds  has  not  been  extinguished,  may,  upon  the  insol- 
vency of  the  buj'er  or  consignee  becoming  known  to  him  after 
parting  with  the  property,  stop  it  while  on  its  transit  to  the 
buyer  or  consignee,  and  resume  possession  thereof.  A  person 
is  insolvent,  within  the  meaning  of  the  above  term,  when  he 
ceases  to  pay  his  debts  in  the  manner  usual  with  persons  of  hi> 
business,  or  when  he  declares  his  inability  or  unwillingness  to 
do  so.     The  transit  of  property  is  at  an  end  when  it  comes  into 


Chap.  30] 


California. 


99 


the  possession  of  the  consignee,  or  into  that  of  his  agent,  unless, 
such  agent  is  employed  merely  to  forward  the  property  to  the 
consignee.  Stoppage  in  transit  can  be  effected  only  by  notice 
to  the  carrier  or  depositary  of  the  property,  or  bj'  taking  actual 
possession  thereof. 

Stoppage  in  transit  does  not,  of  itself,  rescind  a  sale,  but  is 
a  means  of  enforcing  the  lien  of  the  seller. 

A  bona  fide  transfer  of  a  bill  of  lading  defeats  the  right  of 
stoppage  in  transit,  if  such  transfer  is  made  before  the  right  of 
.stoppage  has  been  actually  exercised  by  the  consignor. 


CHAPTER  XXXI. 
BILLS  OF  LADING. 

A  bill  of  lading  is  an  instrument  in  writing,  signed  by  a 
carrier,  or  his  agent,  describing  the  freight  so  as  to  identify  it, 
stating  the  name  of  the  consignor,  the  terms  of  the  contract  for 
carriage,  and  agreeing  or  directing  that  the  freight  be  delivered 
to  the  order  or  assigns  of  a  specified  person,  at  a  specified  place. 

The  title  to  the  freight  which  the  first  holder  of  a  bill  of 
lading  had  when  he  received  it,  passes  to  every  subsequent  in- 
dorsee thereof,  in  good  faith  and  for  value,  in  the  ordinary 
course  of  business,  with  like  effect,  and  in  like  manner,  as  in  the 
case  of  a  bill  of  exchange.  If  a  bill  of  lading  is  made  payable 
to  "  bearer,"  it  is  transferable  by  delivery. 


CHAPTER  XXXII. 

INTEREST. 

Unless  there  is  an  express  contract  in  writing,  fixing  a 
diti'eront  rate,  interest  is  payable  on  all  moneys  at  the  rate  of 
seven  per  cent,  per  annum,  after  they  become  due,  on  any 
instrument  of  writing  except  a  judgment,  and  on  moneys  lent 


M 


l!i: 


?  .  i 


i1-    ; 


ri  ' 


100 


California. 


[Part  :i 


or  due  on  any  settlement  of  accounts,  from  the  day  on  which 
the  balance  is  ascertained,  and  on  moneys  received  to  the  use 
of  another  and  detained  from  him.  In  the  computation  of 
interest  for  a  period  less  than  a  year,  three  hundred  and  sixty 
days  are  deemed  to  constitute  a  yeai*. 

Interest  is  payable  on  judgments  recovered  in  the  Courts 
of  this  State  at  the  rate  of  seven  per  cent,  per  annum,  and  mi 
j^reater  rate ;  but  such  interest  must  not  be  compounded  in  any 
manner  or  form. 

Parties  may  agree,  in  writing,  for  the  payment  of  any  rate 
of  interest,  and  it  shall  be  allowed,  according  to  the  terms  of 
the  agreement,  until  the  entry  of  judgment;  and  they  may,  in 
any  contract  in  writing,  whereby  any  debt  is  secured  to  lie 
paid,  agree  that  if  the  interest  on  such  debt  is  not  punctually 
paid,  it  shall  become  a  part  of  the  principal,  and  thereafter 
bear  the  same  rate  as  the  principal  debt. 

Open  accounts  do  not  bear  interest. 


CHAPTER   XXXIII. 


COMMON  CARRIERS. 


Unless  the  consignor  accompanies  the  freight,  and  retains 
exclusive  control  thereof,  an  inland  common  carrier  of  property 
is  liable,  from  the  time  that  he  accepts  until  he  relieves  him- 
self from  liability,  for  the  lo.ss  or  injury  thereof,  except : 

1.  An  inherent  defect,  vice,  or  weakness,  or  a  spontaneous 
action  of  the  property  itself. 

2.  The  act  of  a  pfiblic  enemy  of  the  United  States,  or  of 
this  State. 

3     The  act  of  the  law  ;  or, 
4.     An  iresistible  superhuman  cause. 

He  is  liable,  even  in  the  cases  above  excepted,  if  his  ordinary 
negligence  exposes  the  property  to  the  cause  of  the  loss.    -A 


[Part  8 

m  which 
(  the  use 
nation  nf 
ind  sixty 

\e  Courts 
n,  and  no 
ed  in  any 

!  any  rate 
i  terms  of 
>y  may,  in 
ired  to  l»e 
Dunctually 
thereafter 


Chap.  33] 


California. 


101 


and  retains 
■  of  property 
relieves  hini- 
ccept : 
,  .spontaneous 

States,  ov  of 


if  hi.s  ordinary 
E  the  loss.    A 


common  carrier  is  liable  for  delay  only  when  it  is  caused  by 
his  want  of  ordinary  care  and  diligence. 

A  marine  carrier  is  liable  in  like  manner  as  an  inland  carrier, 
except  for  loss  and  injury  caused  by  the  perils  of  the  sea  or 
fire. 


4. 

5. 
G. 
7. 

8. 


CHAPTER  XXXIV. 
MORTGAGES  OP  PERSONAL  PROPERTY. 

Mortgages  may  be  made  upon: 

1.  Locomotives,  engines,  and  other  stock  of  a  railroad. 

2.  Steamboat  machinery,  the  machinery  used  by  machin- 
ists, foundrymen,  and  mechanics. 

8.  Steam-engines  and  boilers.  • 
Mining  machinery. 

Printing  presses  and  material.  ,  ■ 

Professional  libraries. 

Instruments  of  surveyor.s,  physicians,  or  dentists. 
Upholstery  and   furniture  used    in   hotels,  lodging  or 

boarding  houses,  when  mortgaged  to  secure  the  purchase  money 
of  the  articles  mortgaged. 

9.  Growing  crops. 

10.  Vessels  of  more  than  five  tons  burden. 

11.  Instruments,  negatives,  furniture,  and  fixtures  of  a 
photograph  gallery. 

12.  The  machinery,  casks,  pipes,  tubes,  and  utensils  used 
in  the  manufacture  or  storage  of  wine,  fruit  brandy,  fruit 
syruj^  >,  or  sugar;  also,  wines,  fruit  brandy,  fruit  syrup,  or 
sugar,  with  Ihe  cooperage  in  which  the  same  is  contained. 

13.  Pianos  and  organs. 

Every  person  who,  after  mortgaging  any  of  the  property 
above  mentioned,  except  locomotives,  engines,  rolling  stock  of 
a  railroad,  steamboat  machinery  in  actual  use,  and  vessels, 
voluntarily  removes  or  permits  the  removal  of  the  mortgaged 


!«     :  H 


102 


California. 


[Part  3 


property  from  the  place  where  it  was  situated  at  the  time  it 
was  mortgaged,  without  the  written  consent  of  the  mortgagee, 
with  intent  to  deprive  the  mortgagee  of  his  interest  therein,  is 
guilty  of  a  misdemeanor. 

A  mortgage  of  personal  property  is  void  as  against  creditors 
of  the  mortgagor,  and  subsequent  purchasers  and  incum- 
brancers of  the  property  in  good  faith  and  for  value,  unless: 

1.  It  is  accompanied  by  the  affidavit  of  all  the  parties 
thereto  that  it  is  made  in  good  faith,  and  without  any  design 
to  hinder,  delay,  or  defraud  creditors. 

2.  It  is  acknowledged  or  proved,  certified  and  recorded. 

A  mortgage  of  personal  property  must  be  recorded  in  tlic 
office  of  the  County  Recorder  of  the  county  in  which  the  mort- 
gagor resides,  and  also  of  the  county  in  which  the  property 
mortgaged  is  situated,  or  to  which  it  may  be  removed. 

A  certified  copy  of  a  mortgage  of  personal  property  onoo 
recorded  may  be  Yecorded  in  any  other  county,  and  when  so 
recorded,  the  record  thereof  has  the  same  force  and  effect  as 
thouffh  it  was  of  the  orijrinal  mortfraffe. 


"o^o"- 


When  property  mortgaged  is  thereafter  by  the  mortgan'oi" 
removed  from  the  county  in  which  it  is  situatetl,  it  is,  except 
as  between  the  parties  to  the  mortgage,  exempt  from  the 
operation  thereof,  unless  either: 

1.  The  mortgagee,  within  thirty  days  after  such  removal, 
causes  the  mortgage  to  be  recorded  in  the  county  to  which  the 
property  has  been  removed;  or, 

2.  The  mortgagee,  within  thirty  days  after  such  renunal, 
takes  possession  of  the  property,  as  prescribed  in  the  next 
paragraph. 

If  the  mortgagor  voluntarily  removes  or  permits  the  removal 
of  the  mortgaged  property  from  the  county  in  wjiich  it  was 
situated  at  the  time  it  was  mortgaged,  the  mortgagee  may  take 
pos.session  and  dispose  of  the  property  as  a  pledge  for  the  pay- 
ment of  the  debt,  though  the  debt  is  not  due. 

Personal  property  mortgaged  may  be  taken  under  attach- 
ment or  execution  issued  at  the  suit  of  a  creditor.     Before  the 


[Part  3 


Chap.  34] 


California. 


103 


time  it 
rtgagee, 
lerein.  is 


jreclitors 
incum- 
nless: 
Q  parties 
ly  clesif,'n 

orded. 
?.d  in  the 
the  mort- 
proporty 

I. 

lerty  once 
I  when  so 
I  effect  us 


property  is  so  taken  the  officer  must  pay  or  tender  to  the 
mortgagee  the  amount  of  the  mortgage  debt  and  interest,  or 
must  deposit  the  amount  thereof  with  the  County  Clerk  or 
Treasurer,  payable  to  the  order  of  the  mortgagee. 

When  the  property  thus  taken  i.s  sold  under  process,  the 
officer  must  apply  the  proceeds  of  sale  as  follow-s : 

1.  To  the  repayment  of  the  sum  paid  to  the  mortgagee 
with  interest  from  the  date  of  such  payment;  and, 

2.  The  balance,  if  any,  in  like  manner  as  the  proceeds  of 
sales  under  execution  are  applied  in  other  cases. 

A  mortgagee  of  personal  property,  when  the  debt  to  secure 
which  the  mortgage  was  executed  becomes  due,  may  foreclose 
the  mortgagor's  I'ight  of  redemption  by  sale  of  the  property 
made  in  the  manner  prescribed  in  the  chapter  on  "pledge,"  or 
may  proceed  by  a  judicial  sale  under  the  direction  of  a  com- 
petent Court. 


mortga;j;oi- 

:,  is,  except 

from  tho 

ch  removal, 
)  which  tho 

ch  removal. 
n  the  next 

the  removal 
k'Juch  it  was 
;cc  may  take 
for  the  pay- 

mder  attach- 
Before  the 


CHAPTER  XXXV. 

PLEDGE. 

A  pledge  is  a  deposit  of  personal  property  by  way  of  secur- 
ity for  the  performance  of  another  act. 

When  a  debtor  has  obtained  credit,  or  an  extension  of 
time,  by  a  fradulent  misrepresentation  of  the  value  of  property 
pledged  by  or  for  him,  the  creditor  may  demand  a  further 
pledge  to  correspond  with  the  value  represented ;  and  in  default 
thereof  may  recover  his  debt  immediately,  though  it  be  not 
actually  due. 

When  performance  of  the  act  for  which  a  pledge  is  given 
is  due,  in  whole  or  in  part,  the  pledgee  may  collect  what  is  due 
to  him  by  a  sale  of  the  property  pledged. 

Before  property  pledged  can  be  sold,  and  after  performance 
of  the  act  for  which  it  is  security  is  due,  the  pledgee  must 


104 


California. 


[Part  3 


I  I' 


demand  performance  thereof  from  the  debtor,  if  the  debtor  can 
be  found. 

A  pledgee  must  give  actual  notice  to  the  pledgor  of  tlic 
time  and  place  at  which  the  property  pledged  will  be  sold,  at 
such  a  reasonable  time  beibre  the  sale  as  will  enable  the  pledgor 
to  attend. 

The  sale  by  a  pledgee  of  property  pledged  must  be  made  1  ly 
public  auction,  in  the  manner  and  upon  the  notice  to  the  pub- 
Mc  usual  at  the  place  of  sale,  in  respect  to  auction  sales  of  sim- 
ilar property;  and  must  be  for  the  highest  obtainable  price. 

A  pledgee  cannot  sell  any  evidence  of  debt  pledged  to  him, 
except  the  obligations  of  governments.  States  or  corporations; 
but  he  may  collect  the  same  when  due. 

The  pledgor  may  require  the  property  to  be  sold  when  it 
will  bring  a  sufficient  amount  to  satisfy  the  claim  of  the  pledge- 

A  pledgee  or  pledge-holder  cannot  purchase  the  property 
pledged,  except  by  direct  dealings  with  the  pledgor. 

Instead  of  selling  property  pledged,  as  hereinbefore  pro- 
vided, a  pledgee  may  foreclose  the  right  of  redemption  by  !i 
Judicial  sale,  under  the  directions  of  a  competent  Court;  and  in 
that  case  maj'  be  authorized  by  the  Court  to  purchase  at  the 
sale. 


in!'- 


CHAPTER  XXXVI. 
GUARANTY  AND  SURETYSHIP. 

A  guarantj''  is  a  promise  to  answer  for  the  debt,  default,  or 
miscarriage  of  another  person. 

Where  a  guaranty  is  entered  into  at  tlie  same  time  witli  tlie 
original  obligation,  or  with  the  acceptance  of  the  latter  by  the 
guarantee,  and  forms  with  that  obligation  a  part  of  the  consid- 
eration to  him,  no  other  considei-ation  need  exist.  In  all  other 
cases  there  m.ust  be  a  consideration  distinct  from  that  of  tlie 
original  obligation. 


Part  :i 
jtor  can 

•  of  tlu' 
sold,  at 
pledgor 

raadelty 
the  pul'- 
s  of  siiii- 
price. 
[1  to  him, 
jorations ; 

when  it 

he  pledge. 

property 


ime  with  the 

atterby  the 

f  the  consid- 

Inall  other 

that  of  the 


Chap.  36]  California.  105 

Except  as  Iiercinafter  described,  a  guaranty  must  be  in 
writing,  and  signed  by  the  guarantor;  but  the  writing  need 
not  express  a  consideration. 

A  promise  to  answer  for  the  obligation  of  another,  in  any 
of  the  following  cases,  is  deemed  an  original  obligation  of  the 
promisor,  and  need  not  be  in  writing: 

1.  Where  the  promise  is  made  by  one  who  has  received 
property  of  another  upon  an  undertaking  to  apply  it  pursuant 
to  such  promise;  or  by  one  who  has  received  a  discharge  from 
an  obligation  in  whole  or  in   part,  in   consideration   of  such 

promise. 

±  Where  the  creditor  parts  with  value,  or  enters  into  an 
obligation  in  consideration  of  the  obligation  in  respect  to  which 
the  promise  is  made,  in  terms  or  under  circumstances  such  as 
to  render  the  party  making  the  promise  the  pi'incipal  debtor, 
and  tlie  person  in  whose  behalf  it  is  made  his  surety. 

3.  Where  the  promise,  being  for  an  antecedent  obligation 
of  another,  is  made  upon  the  consideration  that  the  party 
receiving  it  cancels  the  antecedent  obligation,  accepting  the 
now  promise  as  a  substitute  therefor;  or  upon  the  consideration 
tliat  the  part}'  receiving  it  releases  the  property  from  a  levy, 
or  his  person  from  imprisonment,  under  an  execution  on  a 
judgment  obtained  upon  the  antecedent  obligation;  or  upon  a 
consideration  beneficial  to  the  promisor,  whether  moving  from 
either  party  to  the  antecedent  obligation,  or  from  another 
person. 

4.  Where  a  factor  undertakes,  for  a  commission,  to  sell 
merchandise  and  guarantee  the  sale. 

0.  Where  the  holder  of  an  instrument  for  the  payment  of 
money,  upon  which  a  third  person  is  or  may  become  liable  to 
him,  transfers  it  in  payment  of  a  jrecedent  debt  of  his  own,  or 
for  a  new  consideration,  and  in  connection  with  such  transfer 
enters  into  a  promise  respecting  such  instrument. 

A  guarantor  is  exonerated,  except  so  far  as  he  may  be 
indemnified  by  tlic  principal,  if  by  any  act  of  the  creditor  with- 


106 


California. 


[Part  :} 


out  the  consent  of  the  guarantor  the  original  obligation  of  the 
principal  is  altered  in  any  respect,  or  the  remedies  or  rights  of 
the  creditor  against  the  principal  in  respect  thereto  are  in  any 
way  impaired  or  suspended. 

A  surety  is  one  who,  at  the  request  of  another,  and  for  the 
purpose  of  securing  to  him  a  benefit,  becomes  responsible  for 
the  performance,  by  the  latter,  of  some  act  in  favor  of  a  thinl 
person,  or  hypothecates  property  as  security  therefor. 

A  surety  is  exonerated: 

1.  In  like  manner  with  a  guarantor. 

2.  To  the  extent  to  which  he  is  prejudiced  by  any  act  of 
the  creditor  which  would  naturally  prove  injurious  to  the  rem- 
edies of  the  surety,  or  inconsistent  with  his  rights,  or  which 
lessens  his  security;  or, 

3.  To  the  extent  to  which  he  i.s  prejudiced  by  an  omission 
of  the  creditor  to  do  anything,  when  required  by  the  surety, 
which  it  is  his  duty  to  do. 

A  surety  has  all  the  rights  of  a  guarantor. 

A  surety  may  require  his  creditor  to  proceed  against  the 
principal,  or  to  pursue  any  other  remedy  in  his  power,  which 
the  surety  cannot  himself  piusue,  and  which  would  lighten 
his  burden;  and  if  in  such  ease  .;he  creditor  neglects  to  do  so 
the  surety  is  exonerated  it:*  Tae  extent  to  which  he  is  therely 
prejudiced. 

A  surety  may  compel  his  principal  to  perform  the  obliga- 
tion when  due. 

A  surety,  upon  satisfying  the  obligation  of  the  principal,  is 
entitled  to  enforce  every  remedy  which  the  creditor  then  luis 
against  the  principal,  to  the  extent  of  reimbursing  what  he 
has  expended,  and  also  to  require  all  his  co-sureties  to  contrib- 
ute thereto,  without  regard  to  the  order  of  time  in  which  they 
become  such. 

Whenever  property  of  a  surety  is  hypothecated  with  prop- 
erty of  the  principal,  the  surety  is  entitled  to  have  the  piop- 
erty  of  the  principal  first  applied  to  the  discharge  of  the 
obligation. 


urt  :i 

»f  tlu« 
its  of 
n  any 


or  tin* 
tie  t'»ir 
b  thirtl 


Chap.  SG] 


California, 
Letter  of  Credit. 


107 


A  letter  of  credit  is  a  written  instrument,  addressed  by  one 
person  to  another,  recjuostinj,'  the  latter  to  give  credit  to  the 
person  in  whose  favor  it  is  drawn. 

The  writer  of  the  letter  of  credit  is,  upon  the  default  of  the 
ilebtor,  liable  to  those  who  gave  credit  in  compliance  with  its 
terms. 


{  act  of 
,he  rom- 
V  which 

jmissiDii 
;  surety, 


ainst  tl\e 
ev,  which 
d  lighten 
to  do  so 
is  therohy 


lie 


obliu'ii- 


rincipal.  is 
:  then  hns 
ft  what  he 
to  contvih- 
vhich  they 


CHAPTER  XXXVn. 

SALE. 

No  sale  of  personal  property,  or  agreement  to  buy  or  sell 
it,  for  a  price  of  two  hundred  dollars  or  more,  is  valid,  unless: 

1.  The  agreement,  or  some  note  or  memorandum  thereof, 
be  in  writing,  and  subscribe*!  by  the  party  to  be  charged,  or  by 
his  agent;  or, 

2.  The  buyer  accepts  and  receives  part  of  the  thing  sold, 
or  when  it  consists  of  a  thing  in  action,  part  of  the  evidences 
thereof,  or  some  of  them;  or, 

3.  The  buyer,  at  the  time  of  the  sale,  pays  a  part  of  the 
price. 

The  foregoing  provisions  do  not  effect  an  agreement  to  man- 
ufacture a  thing  from  materials  furnished  by  the  manufac- 
turer or  by  another  person. 

No  agi'eement  for  the  sale  of  real  property,  or  of  an  interest 
therein,  is  valid  unless  tne  same,  or  some  note  or  memoran- 
dum thereof,  be  in  writing,  and  subscribed  by  the  party  to  bo 
charged,  or  his  agent  thereunto  authorized  in  writing. 

If  a  buyer  of  personal  property  does  not  pay  for  it  accord- 
ing to  contract,  and  it  remains  in  the  possession  of  the  seller 
after  payment  is  due,  the  seller  may  rescind  the  sale,  or  enforce 
his  lien  for  the  price. 

In  order  to  make  a  sale  of  personal  property  effectual  as 
against  creditors,  there  must  be  an  immediate,  actual,  and  con- 
tinued change  of  possession. 


m 


108  California.  [Part  3 


CHAPTER  XXXVIII. 

.    CONTRACTS. 

A  contract  is  an  agreement  to  do  or  not  to  do  a  certain 
thing:.  It  is  essential  to  the  existence  of  a  contract  that  there 
should  be: 

1.  Parties  capable  of  contracting. 

2.  Their  consent.  . 

3.  A  lawful  object. 

4.  A  siifficient  cause  of  consideration. 

A  written  instrument  i,s  presumptive  evidence  of  con- 
sideration. 

Contracts  are  either  expressed  or  implied. 

An  express  contract  is  one,  the  terms  of  which  are  stated 
in  words. 

An  implied  contract  is  one,  the  existence  and  terms  of 
which  are  manifested  by  conduct. 

The  following  contracts  are  invalid,  unless  the  same,  or 
.^ome  note  or  memorandum  thereof,  be  in  writing,  and  sub- 
scribed by  the  party  to  be  charged,  or  by  his  agent. 

1.  An  agreement  that,  by  its  terms,  is  not  to  be  perforineil 
within  a  year  from  the  making  thereof. 

2.  A  special  promise  to  answer  for  the  debts,  default  or 
miscarriage  of  another,  except  in  the  case  mentioned  in  Chap- 
ter XXXVI. 

3.  An  agreement  made  upon  consideration  of  niarriaui' 
other  ilian  a  mutual  promise  to  marry. 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  thino:- 
in  action,  at  a  price  not  less  than  two  hundred  dollars,  unksi 
the  buyer  accept  or  receive  part  of  such  goods  and  chattels,  or 
the  evidences,  or  .some  of  them,  of  such  things  in  action,  or  pay 
at  the  time  some  part  of  the  purchase  money;  but  when  a  sale 
is  made  by  Jiuction,  an  entry  by  the  auctioneer  in  his  sale  be: 
at  the  time  of  the  sale,  of  the  kind  of  property  sold,  the  term 


i^ir '« i- 


xxi  3 


Chap.  88] 


California. 


109 


certain 
,t  there 


ot    con- 


of  sale,  the  price,  and  the  names  of  the  purchaser  and  person 
on  whose  account  the  sale  is  made,  is  a  sufficient  memorandum. 

5.  An  agreemen*  lor  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  real  property,  or  of  an  interest 
therein;  and  such  agreement,  if  made  by  an  agent  of  the  party 
sought  to  be  charged,  is  invalid,  unless  the  authority  of  the 
agent  be  in  writing,  subscribed  by  the  party  .sought  to  be 
charged. 

6.  An  agreement  authorizing  or  employing  an  agent  or 
broker  to  purchase  or  sell  real  estate  for  compensation  or  a 
commission. 

All  contracts  may  be  oral  except  such  as  are  especially 
required  by  statute  to  be  in  writing. 


irc  stated 
terras  of 

same,  or 
and  sub- 

performctl 

default  or 
\  in  Chap- 

o{  marriage 


IS, 


or  thiu'j 


)\lars,  unless 
I  chattels,  or 
ction,  or  pay 
when  a  sale 
lis  sale  br.: 
\d,  the  term 


CHAPTER  XXXIX. 

NEGOTIABLE  INSTRUMENTS. 

A  bill  of  exchange  is  an  instrument  negotiable  in  form  by 
which  one,  who  is  called  the  drawer,  requests  another,  called 
tlie  drawee,  to  pay  a  specified  sum  of  money. 

A  bill  of  exchange  is  payable: 

1.  At  the  place  wheve,  by  its  terms,  it  is  made  payable;  or, 

2.  If  it  specify  no  place  of  payment,  then  at  the  place  to 
which  it  is  addressed;  or, 

3.  If  it  is  not  addressed  to  any  place,  then  at  the  place  of 
I'osidcnce  or  business  of  the  drawee,  or  wherever  he  may  be 
found.  If  the  drawee  has  no  place  of  business,  or  if  his  place 
of  business  or  residence  cannot,  with  reasonable  diligence,  be 
ascertained,  presentment  for  payment  is  excased,  and  the  bill 
may  be  protested  for  non-payment. 

Presentment  of  a  bill  of  exchange  for  acceptance  must  be 
made  in  the  following  manner,  as  nearly  as  by  rea.sonable  dili- 
gence it  is  practical )le: 

1.    The  bill  must  be  presented  by  the  holder  or  liis  agent. 


no 


California. 


[Part  :] 


;    1  :'!i^ 


I" 


!■  -I 


2.  It  must  be  presented  on  a  business  day,  and  within 
reasonable  hours. 

3.  It  must  be  presented  to  the  drawee,  or  if  he  be  absent 
fi'om  his  place  of  residence  or  business,  to  some  person  having' 
charge  thererf,  or  employed  therein;  and, 

4.  The  drawee,  on  such  presentment,  may  postpone  his 
acceptance  or  refusal  until  the  next  day.  If  the  drawee  have 
no  place  of  business,  or  if  his  place  of  business  or  residence  can- 
not, with  reasonable  diligence,  be  ascertained,  presentment  i'ov 
acceptance  is  excused,  and  the  bill  may  be  protested  for  n  r 
acceptance. 

When  a  bill  of  exchange  is  payable  at  a  specified  time  after 
sight,  the  drawer  and  endorsers  are  exonerated  if  it  is  not  pre- 
sented for  acceptance  within  ten  days  ^after  the  time  which 
would  suflSce,  with  ordinary  diligence,  to  forward  it  for  accept- 
unco,  unless  presentment  is  excused. 

Am  acceptance  of  a  bill  must  be  niade  in  writing,  and  may 
be  made  by  the  acceptor  writing  his  name  across  the  face  of 
the  bill,  with  or  without  other  words. 

An  unconditional  promise,  in  writing,  to  accept  a  bill  of 
exchange,  is  a  sufficient  acceptance  theroof,  in  favor  of  every 
person  who,  upon  tlie  faith  thereof,  has  ti.  en  the  bill  for  value 
or  other  good  consideration. 

On  the  dishonor  of  a  bill  of  exchange  by  the  drawee,  and  in 
case  of  a  foreign  bill,  after  it  1ms  been  duly  protested,  it  may 
be  accepted  or  paid  bj'-  any  person  for  the  honor  of  any  party 
thereto. 

If  a  bill  of  exchange,  payable  at  siglit  or  on  demand,  with- 
out interest,  is  not  duly  presented  for  payment  within  ten  days 
after  the  time  in  wiiich  it  could,  with  reasonable  diligence,  be 
transmitted  to  the  proper  place  for  presentment,  the  drawer 
and  indorsers  are  exonerated  unless  such  presentment  i'^ 
excused. 

The  presentment  of  a  bill  of  exchange  for  acceptance  is 
excused  if  the  drawee  has  not  capacity  to  accept  it. 

Delay  in  the  presentment  of  a  bil!  of  'ixchanj;*'  for  accept- 
ance is  excused  wlion  ''imsed  by  circumstances  ov'»  vhicli  tlio 
owner  has  no  control. 


Chap.  39] 


California. 


Ill 


f^ 


Presentment  of  a  bill  of  exchange  for  acceptance  or  pay- 
ment, and  notice  of  its  dishonor,  are  excused  as  to  the  drawer, 
it'  he  forbids  the  drawee  to  accept,  or  the  acceptor  to  pay  the 
bill;  or  if,  at  the  time  of  drawing,  he  had  no  rea.son  to  believe 
that  the  drawee  would  accept  or  pay  the  same. 

An  inland  bill  of  exchange  is  one  dri\wn  and  payable  with- 
in this  State.     All  others  are  foreign. 

Notice  of  the  dishonor  of  a  foreign  bill  of  exchange  can  be 
given  only  by  notice  of  its  protest,  and  the  protest  must  be 
made  by  a  Notary  Public,  if  with  reasonable  diligence  one  can 
be  obtained ;  and  if  not,  then  by  any  reputable  person,  in  the 
presence  of  two  witnesses.  Protest  for  non-acceptance  must  be 
made  in  the  city  or  town  in  which  the  bill  is  presented  for 
acceptance,  and  a  protest  for  non-payment  in  the  city  or  town 
in  which  it  is  presented  for  payment. 

One  who  pays  a  foreign  bill  for  honor  must  declare,  oefore 
payment,  in  the  presence  of  a  person  authorized  to  maKc  pro- 
test, for  whose  honor  ho  pays  the  same,  in  order  to  entitle  him 
to  reimbursement. 

Damaores  on  foreign  bills  of  exchanoje  are  allowed  as  here- 
irnticr  prescribed,  as  a  full  compensation  for  interest  accrued 
jfove  notice  of  dishonor,  re-exchange,  expenses,  and  all  other 
dam  ^rps,  in  favor  of  holders  for  value  only,  upon  bills  of 
f\rh-'-.ge  drawn  or  negotiated  within  the  State,  and  protested 
i^r  .;ofi-acceptance  or  non-payment. 

Damages  art  allowed  as  follows: 

1.  If  drawn  upon  any  person  in  this  State,  two  dollars 
upon  each  one  hundred  dollars  of  the  principal  sum  specified 
in  the  bill. 

2.  If  drawn  upon  any  person  out  of  this  State,  but  in  any 
other  of  the  States  west  of  the  Rocky  Mountains,  five  dollars 
upon  each  one  hundred  dollars  of  the  principal  sum  specified  in 
<>l0^i!l. 

'i  If  drawn  upon  any  person  in  any  of  the  United  States 
ea.st  uf  the  Rocky  Mountains,  ten  dollars  upon  each  one 
Imndred  dollars  of  the  principal  sum  .specified  in  the  bill. 


ri 


\ 


m 


112 


California. 


[Part  3 


4.  If  drawn  upon  any  person  in  any  place  in  a  foreign 
country,  fifteen  dollars  upon  each  one  hundred  dollars  of  the 
principal  sum  specified  in  the  bill. 

From  the  time  of  notice  of  dishonor  and  demand  of  pay- 
ment, lawful  interest  must  be  allowed  upon  the  aggregate 
amount  of  the  principal  sum  specified  in  the  bill,  and  the  dam- 
ages abovt   J     !<"■' med. 

A  promi-.  note  is  an  instrument  negotiable  in  form, 
"Avhereby  the  si<i,..er  promises  to  pay  a  specified  sum  of  money. 

If  a  promissory  note,  payable  on  demand,  or  at  sight,  witli- 
out  interest,  is  not  duly  presented  for  payment  within  six 
inonths  from  its  date,  the  indorsers  thereof  are  exonerated, 
imless  such  presentment  is  excused. 

Days  of  grace  arc  not  allowed  on  bills  of  exchange  and  prom- 
issory notes. 

A  check  is  a  bill  of  exchange  drawn  upon  a  bank  or  bank- 
er, or  a  person  described  as  such  upon  the  face  thereof,  and  pay- 
able on  demand  without  interest. 

A  check  is  subject  to  all  the  provisions  liercin  mentioncil 
concerning  bills  of  exchange,  except  that — 

1.  The  drawers  and  indorsers  are  exonerated  by  delay  in 
presentation  only  to  the  extent  of  the  injury  they  sutler 
thereby. 

2.  An  in<lorsee,  after  its  apparent  maturity,  but  without 
actual  notice  of  its  dishonor,  acquires  a  title  e(|ual  to  that  of  an 
indorsee  before  such  period. 

A  negotiable  instrument  must  be  made  payable  in  money 
only,  and  without  any  condition  not  certain  of  fulfillment. 

A  negotiable  insti-ument  may  be  made  with  or  without 
da.;C,  and  with  or  without  designation  of  the  time  or  place  of 
payment. 

A  negotiable  instrument  may  contain  a  pledge  of  colhiteiai 
security,  with  authority  to  dispose  tliereof. 

A  negotiable  instrument  which  does  not  .specify  a  place  of 
payment  is  payable  at  the  residence  or  place  of  business  of  tln' 
maker,  or  wherever  he  may  be  found. 

A  negotiable  instrument  made  payable  to  the  order  of  tln' 
maker,  or  of  a  fictitious  person,  if  issued  by  the  maker  for  n 


avt  3 


Chap.  39] 


California. 


113 


oreign 
of  the 

»f  pay- 

nftesiate 
le  dam- 

n  form, 
money, 
it,  with- 
thin  siK 
jncrated, 

ntl  pvom- 

or  bank- 
,  arul  pay- 

mentioncil 

(lolay  m 
hey   Slitter 

withuiU 
that  oi  an 

in  money 

incnt. 
or  without 
or  pli^te  ot 

,f  colhitcrai 

iT  a  place  of 
sinoss  oi  till' 

order  oi;  tin' 
maker  for  i^ 


valid  consideration,  without  indor.sement,  ha.s  the  .same  effect 
again.st  him,  and  all  other  persoas  having  notice  of  the  facts, 
as  if  payable  to  the  bearer. 

An  indorsement  of  a  negotiable  instrument  may  be  general 
or  special. 

A  general  indorsement  is  one  by  which  no  indor,-ee  is 
named.     A  special  indorsement  specifies  the  indorsee. 

A  negotiable  instrument  bearing  a  general  indorsement  can- 
not be  afterward  specially  endorsed;  but  any  lawful  holder 
may  turn  a  general  indorsement  into  a  special  one  by  writing 
above  it  a  direction  for  pajmient  to  a  pax'ticular  person. 

A  special  indorsement  may,  by  express  words  for  that  pur- 
pose, but  not  otherwise,  be  so  made  as  to  render  the  instrument 
not  negotiable. 

An  indorser  may  qualify  his  indorsement  with  the  words, 
"  without  recourse,"  or  eciuivalent  w  ords ;  and  upon  such  indorse- 
ment he  is  responsible  only  to  the  same  extent  as  in  the  case  of 
a  transfer  without  indorsement. 

An  indorsee  in  due  course  is  one  who,  in  good  faith,  in  the 
ordinary  course  of  business,  and  for  value,  before  its  apparent 
maturity  or  presumptive  dishonor,  and  without  knowledge  of 
its  actual  dishonor,  acquires  a  negotiable  instrument  duly 
indorsed  to  him,  or  indorsed  generally,  or  payable  to  the  bearer. 

An  indorsee  of  a  negotiable  instrument,  in  due  course,  accpiires 
an  absolute  title  thereto,  so  that  it  is  valid  in  his  hands,  not- 
withstanding any  provision  of  law  making  it  generally  void 
or  voidable,  and  notwithstanding  any  defect  in  the  title  of  the 
person  from  wh.>m  he  acquired  it. 

The  want  of  consideration  for  the  undertaking  of  a  maker, 
acceptor,  or  indorser  of  a  negotiable  instrument,  does  not  exon- 
erate him  from  liability  thereon  to  an  indorsee  in  good  faith  for 
a  consideration. 

It  i.s  not  necessary  to  make  a  demand  of  payment  upon  the 
principal  (lel)tor  in  a  negotiable  instrument  in  order  to  charge 
Wm;  but  if  the  instrument  is,  by  its  terms,  payable  at  a  speci- 
fied place,  and  he  is  able  and  willing  to  pay  it  there  at  nmtur- 
ity,  such  ability  and  willingness  are  equivalent  to  an  otter  of 
payment  on  his  part. 


L  /J  f  * 


rim 


114 


Califorxia. 


[Part  3 


Presentment  of  a  negotiable  instrument  .  '  payment,  when 
necessary,  must  be  made  as  follows,  as  nearly  as  by  reasonable 
diligence  it  is  practicable: 

1.  The  instrument  must  be  presented  by  the  holder. 

2.  The  instrument  must  be  presented  to  the  principal 
debtor,  if  he  can  be  found  at  the  place  where  presentment 
should  be  made ;  and  if  not,  then  it  must  be  presented  to  some 
other  person  having  charge  thereof,  or  emploj^ed  therein,  if  one 
can  be  found  there. 

3.  An  instrument  which  specifies  a  place  for  its  payment 
must  be  presented  there ;  and  if  the  place  specified  includes 
more  than  one  house,  then  at  the  place  of  residence  or  business 
of  the  principal  debtor,  if  it  can  be  found  therein. 

4.  An  instrument  which  does  not  specify  a  place  for  its 
payment  must  be  presented  at  the  place  of  residence  or  busi- 
ness of  the  principal  debtor,  or  wherever  he  may  be  found,  at 
the  option  of  the  presentor,  and, 

5.  The  iiiotrument  must  be  presented  upon  the  day  of  its 
maturity,  or  if  it  be  payaljle  on  demand,  it  may  be  presented 
on  any  daj'.  It  must  be  presented  within  reasonable  hoius: 
and  if  it  be  payable  at  a  banking-hou.se,  v.'ithin  the  usual  bank- 
ing-hours of  the  vicinity;  but  by  the  consent  of  the  person  to 
whom  it  .should  be  presented,  it  may  be  presented  at  any  hour 
of  the  day. 

6.  If  the  principal  debtor  have  no  place  of  business,  or  it' 
his  place  of  business  or  residence  cannot,  with  reasonable  dili- 
gence, be  ascertained,  presentment  for  payment  is  excused. 

The  apparent  maturity  of  a  negotiable  instrument,  payabk 
at  a  particular  time,  is  the  day  on  which,  by  its  terms,  it  be- 
comes due,  or  when  that  is  a  holiday,  the  next  business  day. 

A  bill  of  exchange,  payable  at  a  certain  time  after  sight 
which  is  not  accepted  within  tendpys  after  its  date,  in  adlitioii 
to  the  time  which  would  suffice,  with  ordinary  diligence,  to  for- 
ward it  for  acceptance,  is  presumed  to  have  been  dishonored. 

The  apparent  maturity  of  a  bill  of  exchange,  payable  at 
sifrht  or  on  demand,  is: 

1.     If  it  bears  interest  one  year  after  its  date ;  or. 


Chap.  39] 


California. 


115 


2.  If  it  does  not  bear  interest,  teM  day.s  after  its  date,  in 
addition  to  the  time  which  would  suffice,  with  ordinary  dili- 
gence, to  forward  it  for  acceptance.  . 

The  apparent  maturity  of  a  promissory  note,  payable  at 
sight  or  on  demand,  is : 

1.  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  six  months  after  its  date. 
When  a  promissory  note  is  payable  at  a  certain  time  after 

sight  or  demand,  such  time  is  to  be  added  to  the  period  above- 
mentioned. 

A  negotiable  instrument  is  dishonored  when  it  is  either  not 
paid  or  not  accepted,  according  to  its  tenor,  on  presentation  for 
the  purpose,  or  without  presentation  when  that  is  excused. 

Notice  of  the  dishonor  of  a  negotiable  instrument  may  be 
given: 

1.  By  a  holder  thereof;  or, 

2.  By  any  party  to  the  instrument  who  might  be  com- 
pelled to  pay  it  to  the  holder,  and  who  would,  upon  taking  it  up, 
have  a  right  to  reimbursement  from  the  party  to  whom  the 
notice  is  given. 

A  notice  of  dishonor  may  be  given  in  any  form  which 
describes  the  instrument  with  reasonable  certainty,  and  sub- 
stantially informs  the  party  receiving  it  that  the  instrument 
has  been  dishonored. 

A  notice  of  dishonor  may  be  given: 

1.  By  delivering  it  to  the  party  to  be  charged,  personally, 
at  any  place  ;  or, 

2.  By  delivering  it  to  some  person  of  discretion  at  the 
place  of  residence  or  business  of  such  party,  apparently  act- 
ing for  him ;  or,  . 

3.  By  properly  folding  the  notice,  directing  it  to  the  party 
to  be  charged,  at  his  place  of  residence,  according  to  the  best 
information  that  the  person  giving  the  notice  can  obtain,  depos- 
iting it  in  the  Post-office  most  conveniently  accessible  from  the 
place  where  the  presentment  was  made,  and  paying  the  post- 
ajie  thereon. 


l;.j 

IHi 

to 

ffil 

1 

f^M 

1 

1 

1 

1 

1 

1 

^^|iHB 

1 

m 

^ 

116 


California. 


[Part  3 


In  case  of  death  of  a  party  to  whom  notice  of  dishonor 
should  otherwise  be  given,  the  notice  must  be  given  to  one  of 
his  personal  representatives;  or  if  there  are  none,  then  to  nny 
member  of  his  family  who  resided  with  him  at  his  death ;  or 
if  there  is  none,  then  it  must  be  mailed  at  his  last  place  of 
residence. 

A  notice  of  dishonor  given  otherwise  then  by  mail  must  he 
given  on  the  day  of  dishonor,  or  on  the  next  business  day. 
When  given  by  mail,  it  must  be  deposited  in  the  Post-offico  in 
time  for  the  first  mail  which  closes  after  noon  of  the  first  busi- 
ness day  succeeding  the  dishonor,  and  which  leaves  the  place 
where  the  instrument  was  dishonored  for  the  place  to  whieli 
the  notice  should  be  sent. 

Every  party  to  a  negotiable  instrument,  receivinj^  notice  nf 
its  dishonor,  has  the  like  time  thereafter  to  give  similar  noticu 
to  prior  parties  as  the  original  holder  had  after  its  dishonor, 
But  this  additional  time  is  available  only  to  the  particular 
party  entitled  thereto. 

A  notice  of  the  dishonor  of  a  negotiable  instrument,  if  vali<l, 
in  favor  of  the  party  giving  it,  inures  to  the  benefit  of  all 
other  parties  thereto  whose  right  to  give  the  like  notice  bus 
not  been  lost. 

Notice  of  dishonor  is  excused  : 

1.  When  the  party  by  whom  it  should  be  given  cannot, 
with  reasonable  diligence,  ascertain  either  the  place  of  resi- 
dence or  business  of  the  party  to  be  charged ;  or, 

2.  When  there  is  no  post-office  comnmnication  between 
the  town  of  the  party  by  whom  the  notice  should  be  given,  and 
the  town  in  which  the  place  of  residence  or  business  of  the 
party  to  be  charged  is  situated ;  or, 

3.  When  the  party  to  be  charged  is  the  same  party  who 
dishonors  the  instrument;  or, 

4.  When  the  notice  is  waived  by  the  party  entitled  thereto. 
Presentment  and  notice  are  excused  as  to  any  party  who 

informs  the  holder,  within  ten  days  before  maturity,  that  the 
instrument  will  be  dishonored. 


m 

isl 


Chap.  39] 


California. 


117 


list  be 
s  day. 
fico  in 
;t  busi- 
3  place 
)  which 


If  before  or  after  the  maturity  of  an  instrument  an  indor- 
ser  has  received  full  security,  for  the  amount  thereof,  or  the 
maker  has  assigned  all  his  estate  to  him  as  such  security,  pre- 
sentment and  notice  to  him  are  excused. 

Delay  in  presentment,  or  in  giving  notice  of  dishonor,  is 
excused  when  caused  by  circumstances  which  the  party  delay- 
ino'  could  not  have  avoided  bv  the  exercise  of  reasonable  care 
and  diligence. 

A  waiver  of  presentment  waives  notice  of  dishonor  also; 
but  a  waiver  of  notice  does  not  waive  presentment. 

A  waiver  of  protest  on  any  negotiable  instrument,  other 
than  a  foreign  bill  of  exchange,  waives  presentment  and  notice. 


otice  of 
r  notice 
lishonov, 
articular 

i,if  vaU«l 
fit  of  all 
otice  ba^ 


;n  cannot, 
■c  of  vcM- 


CHAPTER  XL. 

PRINCIPAL  AND  AGENT. 

An  agent  is  one  who  represents  another,  called  the  princi- 
pal, in  dealings  with  third  persons. 

Any  person  having  capacity  to  contract,  may  appoint  an 
agent,  and  any  person  may  be  an  agent. 

An  agent  for  a  particular  act  or  transaction  is  called  a 
•special  agent.     All  others  are  general  agents. 

Any  agent,  unless  specially  forbidden  by  his  principal  to  do 
so,  can  delegate  his  powers  to  another  person  in  any  of  the 
following  cases,  and  in  no  others: 

1.  When  the  act  to  be  done  is  purel)*  mechanical. 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the 
sub-agent  can,  lawfully  perform. 

3.  When  it  is  the  usage  of  the  place  to  delegate  such  powers. 
4'.    When  such  delegation  is  specially  authorized  by  the 

principal. 

It'  an  agent  employs  a  sub-agent  without  authority,  the 
former  is  a  principal  and  the  latter  his  agent,  and  the  principal 
of  the  former  has  no  connection  with  the  latter. 

A  sub-agent,  lawfully  appointed,  represents  the  principal 
in  like  manner  with  the  original  agent;  and  the  original  agent 
IS  not  responsible  to  third  persons  for  the  acts  of  the  sub-agent. 


ill 


!'..'• 


fj 


118  California.  [Part  3 


CHAPTER  XLI. 

FRAUDULENT  INSTRUMENTS  AND  TRANSFERS, 

ETC. 

Every  transfer  of  property  or  change  thereon  made,  every 
obligation  incurred,  and  every  judicial  proceeding  taken,  with 
intent  to  delay  or  defraud  any  creditor  or  other  person  of  his 
demands,  is  void  against  all  creditors  of  the  debtoi-  and  their 
successors  in  interest,  and  against  any  person  upon  v;hom  tho 
estate  of  the  debtor  devolves,  in  trust  for  the  benefit  of  others 
than  the  debtor. 

Every  transfer  of  personal  property  (other  than  a  thinn  in 
action,  or  a  ship  or  cargo  at  sea,  or  in  a  foreign  port,  and  every 
lien  thereon,  other  than  a  mortgage,  when  allowed  by  law  and 
a  contract  of  bottomry  or  respondentia)  is  conclusively  ])i'e- 
sumed — if  made  by  a  person  having  at  the  time  the  possession 
or  control  of  the  property,  and  not  accompanied  by  an  imme- 
diate delivery,  and  followed  by  an  actual  and  continued  change 
of  possession  of  the  things  transferred — to  be  fraudulent,  and 
therefore  void,  against  those  who  are  his  creditors  while  ho  re- 
mains in  possession,  and  the  successors  in  interest  of  such  cred- 
itors, and  against  any  person  on  whom  the  estate  devolves  in 
trust  for  the  benefit  of  others  than  himself,  and  against  pur- 
chasers or  incumbrancers  in  good  faith  subsequent  to  the 
transfer. 

Fraudulent  Representations. 

Every  person  who  knowingly  and  designedly,  by  false  or 
fraudulent  representation  or  pretenses,  defrauds  any  other  per- 
son of  money  oi"  property,  or  who  causes  or  procures  others  to 
report  falsely  of  his  wealth  or  mercantile  character,  and  by 
thus  imposing  upon  any  person  obtains  credit,  and  thereby 
fraudulently  gets  into  possession  of  money  or  property,  is 
punishable  in  the  same  manner  and  to  the  same  extent  as  tor 
larceny  of  the  money  or  property  so  obtained. 


Chap.  42] 


California. 


119 


CHAPTER  XLII. 

ASSIGNMENTS  FOR  THE  BENEFIT  OP 
CREDITORS. 

An  insolvent  debtor  may  in  good  faith  execute  an  assign- 
ment of  property  in  trust  for  the  satisfaction  of  his  credit'^xS. 
Every  such  assignment  shall  contain  a  list  of  the  names  of  the 
creditors  of  the  assignor,  and  their  places  of  residence   and 
amounts  of  their  respective  demands,  and  shall  be  made  to  the 
Sheriff  of  the  county,  or  city  and  county,  wherein  the  assignor 
resides,  if  the  assignor  I'esides  within  this  State,  or  in  cnso  the 
assignor  resides  out  of  this  State,  then  to  the  Sheriff  of  the 
county  or  city  and  county  wherein  the  property  assigned  or 
«ome  of  it  is  situated;  but  when  the  assignor  resides  out  of  the 
State,  an  assignment  made  as  herein  provided  may  by  its  terms 
transfer  any  propert}"^   of   the   assignor   in   this   State.     The 
Sheriff  shall   forthwith   take   possession   of   all    property   so 
assigned  to  hi;n.     When  the  assignment  has  been  made  the 
Sheriff  shall  immediately,  by  mail,  notify  the  creditors  named 
in  the  assignment  at  their  places  of  residence  as  given  therein, 
to  meet  at  his  office  on  a  day  and  hour  to  be  appointed  by  him,  of 
not  less  than  eight  nor  more  than  ten  days  from  the  date  of 
the  delivery  of  the  assignment  to  him,  for  the  purpose  of  elect- 
ing one  or  more  assignees,  as  they  may  determine,  in  the  plac<' 
and  stead  of  the  said  Sheriff  in  the  premises,  and  shall  also 
publish  a  notice  of  such  meeting  and  the  purpose  thereof  at 
least  once  before  such  meeting,  in  some  newspaper  published  in 
liis  county,  or  city  and  county.     The  notice  so  to  be  mailed  shall 
also  contain  a  statement  of  the  amount  of  the  demand  of  the 
creditor  as  set  forth  in  the  assignment,  and  if  any  creditor 
shall  not  find  such  amount  to  be  correctly  so  stated,  he  may 
tile  with  said  Sheriff,  at  or  before  such  meeting,  a  statement 
under  oath  of  his  demand,  and  such  statement  shall,  for  the 
purpose  of  voting  as  hereinafter  provided,  be  accepted  by  said 


120 


California. 


[Part  :} 


;|i: 


Sheriff  as  correct,  and  when  no  such   statement  is  filed,  the 
statement  of  amount  as  set  forth  in  the  assignment  sliall  Iju 
accepted  by  the  Sheriff  as  correct.     At  such  meeting  the  Shor- 
ifl'  shall  preside,  and  a  majority  in  amount  of  demands  present 
or  represented  by  proxy  shall  control  all  questions  and  decis- 
ions.    The  creditors  may  adjourn  such  meeting  from  time  to 
time,  and  may  vote  on  all  (juestions,  cither  in  person  or  by 
proxy  signed  and  acknowledged  before  any  officer  authorized 
to  take  acknowledgments,  and  filed  with  the  Shcrift".     At  such 
meeting  or  any  adjournment  thereof,  the  creditors  may  elect 
one  or  more  assignees  from  their  own  number  in  the  place  ami 
stead  of  the  Sheriff,  and  the  person  or  persons  so  elected  shall 
afterwards  be  the  assignee  or  assignees,  and   the  Sheriff,  liy 
tiansfer  in  writing  acknowledged,  shall  at  once  assign  to  si; 
elected  assignee  or  assignees,  all  the  property  so  assigned 
him,  and  deliver  possession  thereof.     All  recitals  in  such  as- 
signment by  sai('  Sheriff  of  notices  of  such  meetiuf'  and  the 
holding  thereof,  and  of  the  due  election  of  such  assignee  or 
as.signees,  shall  be  prima  facie  proof  of  the  facts  recited.     The 
Shei-iff"  shall,  before  the  delivery  of  such  assignment,  be  paid 
the  expenses  incurred  by  him,  and  fees  in  such  amount  as 
would  by  law  be  collectible,  if  the  property  assigned  had  been 
levied  upon  and  safely  kept  under  attachment.     Thereupon 
and    after   the   record   of   such    last-named   assignment,  such 
elected  assignee  or  assigness  shall  take  and  hold  and  dispose  of 
all  such  property  and  its  proceeds. 

An  assignment  for  the  benefit  of  creditors  must  be  in  writ- 
ing, subscribed  by  the  assignor,  or  by  his  agent  thereto  author- 
ized in  writing,  and  the  transfer  by  the  Sheriff'  must  also  be  in 
writing,  suVtscribed  by  the  Sheriff'  in  his  official  capacity. 
Both  such  assignment  and  such  transfer  must  be  acknowledgcil 
and  be  recorded. 

Within  twenty  days  after  an  assignment  is  made,  an  niven- 
tovy  must  be  filed,  duly  sworn  to,  by  the  assignor.  If  the  as- 
signor neglects  or  refuses  to  make  and  file  such  inventory  ami 
affidavit  within  said  twenty  days,  the  assignment  shall  not,  for 
tliat  reason,  be  affected  in  any  way,  but  in  that  event  thi' 


Chap.  42] 


California. 


121 


assignee  or  as.sif^nees  elected  by  the  creditors  .shall,  within  twen- 
ty (lay.s  thereafter,  make  and  file  in  the  office  of  the  County 
Recorder  where  the  assignment  is  first  recorded,  a  verified 
inventory  of  all  assets  received  by  them ;  and  such  a,ssignee  or 
a-ssignees  may  at  any  time,  or  from  time  to  time,  after  the 
transfer  to  them  by  the  Sheriff,  by  petition  to  the  Superior 
Court  of  the  county,  or  city  and  county,  where  the  assignment 
is  first  recorded,  cause  the  assignor,  by  order  or  citation,  to 
appear  before  said  Court,  or  a  commissioner  or  referee  to  be 
appointed  by  it,  at  a  time  and  place  within  the  county,  or  city 
and  county,  to  be  designated  in  the  order  or  citation,  to  be 
examined  touching  the  matter  of  the  inventory  n'ative  to  the 
assignment,  and  to  have  with  him  all  books  of  account,  vouch- 
ers, and  papers  relating  to  the  assigned  property,  and  such 
Court  may  by  its  order  require  the  surrender  to  such  assignee 
or  assignees  of  such  books,  vouchers,  and  papers,  to  l)e  by  them 
retained  until  their  trust  is  fully  completed  and  performed. 

An  assijjnment  for  the  benefit  of  creditors  is  void  against 
creditors  of  the  assignor,  and  against  purchasers  and  incum- 
brancers in  good  faith  and  for  value,  unless  it  is  duly  recorded, 
and  unless  either  the  inventory  required  by  the  assignor,  or 
the  inventory  required  of  the  assignee  or  assignees  is  filed 
witliin  the  time  designated  above. 

No  bond  shall  be  given  bv  the  Sheriff,  but  he  shall  be  liable 
on  his  official  bond  for  the  care  and  custody  of  the  property 
while  in  his  possession.  Within  forty  days  after  date  of  the 
transfer  by  the  Sheriff,  the  assignee  must  enter  into  a  bond  to 
the  people  of  this  State  in  such  amount  as  may  be  fixed  by  a 
Judge  of  the  Superior  Court  of  the  county,  or  city  and  county, 
in  which  an  inventory  in  accordance  with  the  provisions  of 
this  title  is  filed,  with  sufficient  sureties  to  be  approved  by  such 
Jnilgo,  and  conditioned  for  the  faithful  discharge  of  the  trust 
anil  the  due  accounting  for  all  moneys  received  by  the  assignee, 
which  bond  must  be  filed  in  the  same  office  with  the  inventory; 
and  any  assignee  failing  to  comply  with  the  provisions  of  this 
section  may  be  removed  by  the  above  named  Superior  Court  on 
petition  of  the  assignor  or  any  creditor,  and  his  successor 
appointed  by  such  Court. 


'  h 

^  .     ft' 


b' 


:m 


122 


California. 


[Part  3 


Until  a  verified  i  iventory  has  been  made  and  filed  either 
by  the  assignor  or  assignee,  as  required  by  the  provisions  of 
this  title,  and  the  assignee  has  given  the  bond  required  by  the 
last  section,  .voch  assigi:<ee  lias  no  authority  to  dispose  of  the 
property  of  the  estate  or  any  part  of  it  (except  in  the  ease  of 
perishable  property,  which  in  his  discretion  he  may  dispose  of 
at  any  time,  and  receive  the  proceeds  of  sale  thereof),  nor  has 
he  power  to  convert  the  property  or  the  proceeds  of  any  sale 
of  perishable  property  to  the  purposes  of  the  trust.     Within 
ten  days  after  the  filing  of  his  bond  the  assignee  must  com- 
mence the  publication  (and  such  publication  shall  continue  ;it 
least  once  a  week  for  four  weeks)  in  some  newspaper  publi.sJMil 
in  the  county,  or  city  and  county,  where  the  inventory  is  filed, 
of  a  notice  to  creditors  of  the  assignor,  stating  the  fact  and  daw 
of  the  assignment,  and  requiring  all  persons  having  claims 
against  the  assignor  to  exhibit  them  with  the  necessary  vouch- 
ers,  and  verified  by  the  oath  of  the  creditor,  to  the  assignee  ;it 
his  place  of  residence  or  business,  to  be  specified  in  the  notice: 
and  he  shall  also,  within  ten  days  after  the  first  publication  of 
said  notice,  mail  a  copy  of  such  notice  to  each  creditor  wliosi' 
name  is  given  in  the  instrument  of  assignment  at  the  address 
therein  given.     After  such  notice  is  given,  a  copy  thereof,  with 
affidavit  of  due  publication  and  mailing,  must  be  filed  with  the 
County  Recorder  with  whom  the  inventory   has   been   filed, 
which  artidavit  shall  be  prlvia  facie  evidence  of  the  facts  stated 
therein.     At  any  time,  or  from  time  to  time,  after  the  expir- 
ation of  thirty  days  from  tiie  first  publication  of  said  notice 
(provided  the  same  shall  also  have   been  mailed   as  provided >, 
the  assignee  may,  in  his  discretion,  declare  and   pay  diviriend< 
to  the  creditxDrs  whose  claims  have  l)een  presently!  and  allowed. 
No  dividend  already  declared  shall   be  disturbed   by  reason  ot 
claims   being   subsequently  presented   and    allowed ;  but  tln' 
creditor  presenting  such  claim  shall  bo  entitled  to  a  dividend 
equal  to  the  per  cent  already  declared  and  paid  before  any 
further  dividend  is  ma<le;  proviih'd,  however,   that   there  I'O 
assets  sufficient  for  that  purpos":  nnd  prorhleil,  that  the  fail- 


Chap.  42] 


Califoenia. 


lue  to  present  such  claiin  shall  not  have  resulted  from  his  own 
neolect,  and  ho  shall  attach  to  such  claim  a  statement  under 
oath  showing  fully  why  the  same  was  not  before  presented. 

The  elected  assignee  or  assignees  for  the  benefit  of  creditors 
shall  be  entitled  to  the  same  commissions  on  assignments  here- 
tofore and  hereafter  made  as  are  allowed  by  law  to  the 
assignees  in  insolvency,  and  the  assignment  caimot  grant  more. 
Such  assignee  or  assignees  shall  also  be  entitled  to  all  neces.sary 
expenses  in  the  management  of  their  trust. 

An  assignment  ft  r  the  benefit  of  creditors  which  has  been 
executed  and  recorded  so  as  to  transfer  the  property  to  the 
Sheriff,  or  a  transfer  by  the  Sheriff  to  the  elected  assignee  or 
assignees  which  has  lieen  executed  and  recorded,  cannot  after- 
wards be  mo<lified  or  cancelled  by  the  parties  without  the  con- 
sent of  the  assignor  and  of  every  ci'editor  affected  thereby. 

An  a.ssignment  for  the  benefit  of  creditors  is  void  arrainst 
any  creditor  of  the  assignor  not  assenting  thereto,  in  the  fol- 
lowinof  cases: 

1.  If  it  give  a  preference  of  one  debt,  or  class  of  debts, 
n\or  another. 

2.  If  it  tend  to  coerce  any  creditor  to  release  or  compro- 
mise his  demands. 

•3,  If  it  provide  for  the  payment  of  any  claim  known  to 
the  assignor  to  be  false  or  frauilulent,  or  for  the  payment  of 
more  upon  any  claim  than  is  known  to  be  justly  due  from  the 
assiffnor. 

i.  If  it  reserve  any  interest  in  the  assigned  pi.  erty,  or  in 
!iny  part  thereof,  to  the  assignor,  or  for  his  benei't,  before  all 
his  existing  debts  are  paid. 

0.  If  it  confer  upon  the  assignee  any  power  which,  if  exer- 
cised, might  prevent  or  delay  the  immediate  conver.sion  of  the 
assijfned  property  to  tlie  purposes  of  the  trust. 

•J.  If  it  exempt  him  from  liability  for  neglect  of  duty  c)r 
misconduct. 

Property  exempt  from  execution,  and  insurance  upon  the 
Hfe  of  the  assignor,  '".o  not  pass  to  the  assignee  unless  specially 
mentioned  in  the  assignment. 


iPi 


m 


EMI 


1 


124 


California. 


[Part  3 


CHAPTER  XLIII. 

COMMISSION  MERCHANTS,  ETC. 

Every  commission  merchant,  broker,  agent,  factor,  or  con- 
signee, who  shall  wilfully  and  corruptly  make,  or  cause  to  be 
made,  to  the  principal  or  consignor  of  such  commission  mer- 
chant, agent,  broker,  factor,  or  consignee,  a  false  statement  con- 
cerning the  price  obtained  for,  or  the  quality  or  quantity  of 
any  propertj'  consigned  or  intrusted  to  such  commission  mer- 
chant, agent,  bi-oker,  factor,  or  consignee  for  sale,  shall  bo 
d'iemed  guilty  of  a  misdemeanor,  and,  on  conviction  thereof. 
shall  be  punished  by  fine  not  exceeding  five  hundred  dollars. 
or  imprisonment  in  the  County  Jail  not  exceeding  six  months, 
or  by  both  such  fine  and  imprisonment. 


CHAPTER   XLIV. 


INSOLVENCY  ACT  OF  1880. 


:i:    V 


General  Subject  of  the  Act. 

Section  1.  Every  in.solvent  debtor  may,  upon  compliancr 
with  the  provision  of  this  Act,  be  discharged  from  his  debt- 
and  liabilities.  This  Act  shall  be  known  and  may  be  cited  a- 
the  Insolvent  Act  of  eighteen  hundred  and  eight)-. 


Voluntary  Insolver.cy. 

Sec.  2.  An  insolvent  debtor  owing  debts  excecdiuLr  i" 
amount  the  sum  of  three  hundred  dollars',  may  apply  by  pi'ti 
tion  to  the  Superior  Court  of  the  county,  or  city  ami  county 
in  which  he  has  resided  for  six  months  next  preceding  the  til- 
ing of  his  petition,  to  bo  discharged  from  his  debts  and  lia'>ii' 
ities.  In  his  petition  he  shall  set  forth  his  place  of  rcsidenci 
his  inability  to  pay  all  his  debts  in  full,  his  willingness  to  sm- 


Chap,  ii] 


California. 


125 


render  all  his  estate  and  etFects  for  the  benefit  of  his  creditors, 
and  his  desire  to  obtain  a  discharge  from  his  debts  and  liabil- 
ities, and  shall  annex  thereto  a  schedule  and  inventory,  and  val- 
uation, in  compliance  with  the  provision  of  this  Act.  The  fil- 
ing of  .said  petition  shall  be  an  act  of  insolvency,  and  there- 
upon such  petitioner  shall  be  adjudged  an  insolvent  debtor. 

Sec.  3.  Schedule,  xohat  to  contain. — Said  schedule  must 
contain  a  full  and  true  statement  of  all  his  debts  and  liabilities, 
exhibiting  to  the  best  of  his  knowledge  and  belief  to  whom 
said  debts  or  liabilities  are  due,  the  place  of  residence  of  his 
creditors,  and  the  sum  due  to  each;  the  nature  of  the  indebted- 
ness or  demand,  whether  founded  on  written  security,  obliga- 
tion, contract,  or  otherwise;  the  true  cause  and  consi(leration 
thereof,  and  the  time  and  place  where  said  indebtedness  accrued, 
and  a  statement  of  any  exi.sting  pledge,  lien,  mortgage,  judg- 
ment, or  other  security  for  the  payment  of  the  same. 

Sec.  4.  Inventory. — Said  inventory  must  contain  ;iii  accur- 
ate description  of  all  the  estate,  both  real  and  ]  i)nal,  of  the 
petitioner,  including  his  homestead,  if  any,  an>i  '  property 
exempt  l)y  law  from  execution,  and  where  the  .sauio  is  .situatfd, 
and  all  incumbrances  thereon. 

Sec.  5.  Apidnvit. — The  petition,  schedule,  and  inventor} 
must  be  verified  by  the  affidavit  of  the  petitioner  annexed 

thereto,  and  shall  be  in  form  substantially  as  follows:  I, , 

do  solenmly  swear  that  the  .schedule  and  inventory  now  deliv- 
ered Ijy  1110  contain  a  full,  perfect,  and  true  discovery  of  all  the 
estate,  real,  personal,  and  mixeil,  goods  and  efiects,  to  me  in 
any  way  belonging;  all  such  debts  as  are  to  me  owing,  or  to 
any  person  or  persons  in  trust  for  me,  and  all  securities  and 
contracts,  and  contracts  wliereliy  any  money  may  hereafter 
hecoine  payable,  or  any  benefit  or  advantage  accrue  to  me  or  to 
I'ly  use,  or  to  any  other  person  or  persons  in  trust  for  me;  that 
1  have  no  lands,  money,  stock,  or  estate,  reversion  or  expect- 
ancy besides  that  set  forth  in  my  .schedule  and  inventory:  that 
I  liave  in  no  instance,  created  or  acknowledged  a  debt  for  a 
;,'reater  sum  than  I  honestly  and   truly  owe;  that  I  liave  not, 


II 


126 


California. 


[Part  8 


It 

]>< 

i. 


1:  J 


directly  or  indirectly,  sold,  or  otherwise  disposed  of,  or  con- 
cealed any  part  of  my  property,  effects,  or  contracts;  that  I 
have  not  in  any  way  compounded  with  my  creditors,  whereby 
to  secure  the  same,  or  to  receive  or  to  expect  anj'  profit  or 
advantage  therefrom,  or  to  defraud  or  deceive  any  creditor  to 
whohi  I  am  indebted  in  any  manner.     So  help  me  God. 

Sec".  6.  Order  of  Court. — Upon  receiving  and  filing  sueii 
petition,  schedule  and  inventory,  the  Court  shall  make  an  order 
declaring  the  petitioner  insolvent,  and  directing  the  Sheriff"  of 
the  county  to  take  possession  of  all  the  estate,  real  and  per- 
sonal, of  the  debtor,  except  such  as  may  be  bj''  law  exempt 
from  execution,  and  of  all  liis  deeds,  vouchers,  books  of  account 
and  papers,  and  to  keep  the  same  safely  until  the  appointment 
of  an  assignee.  Said  order  shall  further  forbid  the  payment 
of  any  debts,  and  the  delivery  of  any  property  belonging  to 
such  debtor,  to  him,  or  for  his  use,  and  the  transfer  of  any  pro- 
perty by  him;  and  shall  further  appoint  a  time  and  place  for  a 
meeting  of  the  creditors  to  prove  tiieir  debts,  and  choose  one 
oi-  more  assignees  of  the  estate,  which  shall  not  be  less  than 
thirty  days  after  the  making  of  said  order,  and  shall  designate 
a  newspaper  or  newspapers  of  general  circulation  in  whicli 
publication  thereof  shall  be  made.  Upon  the  granting  of  said 
order  all  proceedings  against  the  said  insolvent  shall  be  stayed. 

Sec  7.  PuhliciUion. — A  copy  of  said  order  shall  immedi- 
ately be  publislied  by  the  Clerk  of  said  Court  in  the  newspa- 
per or  newspapers  designated  therein,  as  often  as  the  news- 
paper is  printed  before  the  meeting  of  creditors,  and  b(>  ser\  efl 
by  the  Clerk  forthwith  by  United  States  mail,  postage  prepaid, 
or  personally,  on  all  creditors  named  in  the  schedule.  Tin- 
order  of  adjudication  shall  direct  the  pubHcation  thereof  in  a 
newspaper  published  in  the  county  or  city  and  county,  in 
which  the  petition  is  filed,  if  there  be  one,  and  if  there  be  hone, 
in  a  newspaper  published  nearest  to  such  county,  or  city  and 
county;  provided,  thai  no  order  of  iiljudication  upon  creditors' 
petition  .shall  b(>  entered,  unless  there  first  be  deposited  with  the 
Clerk,  in  addition  to  the  usual  cost  of  commencing  said  pro- 


Chap.  44] 


California. 


127 


ceedings,  a  sum  of  money  sufficient  to  defraj'  the  cost  of  the 
publication  ordered  by  the  Court,  and  ten  cents  for  each  copy, 
to  be  mailed  to  or  served  on  the  creditors,  which  latter  sum  is 
hereby  constituted  the  legal  fee  of  the  Clerk  for  the  mailing 
or  service  required  in  this  section. 


11 


Involuntary  Insolvency. 

Sec.  8.  An  adjudication  of  insovlency  maybe  made  on  the 
petition  of  five  or  more  creditors,  residents  of  this  State,  whose 
debts  or  demands  accrued  in  this  State,  and  amount  in  the 
aggregate  to  not  less  than  five  hundred  dollars;  iirovuled,  that 
said  creditors,  or  either  of  them,  have  not  become  creditors  by 
assignment  within  thirty  days  prior  to  the  filing  of  said  peti- 
tion. Such  petition  must  be  filed  in  the  Superior  Court  of  the 
county,  or  city  and  county,  in  which  the  debtor  resides  or  has 
his  place  of  business,  and  must  be  verified  by  at  least  three  of 
the  petitioners,  setting  forth  that  sucli  person  is  about  to  do- 
part  from  the  State  with  intent  to  defraud  his  creditors;  or 
being  absent  from  the  State  with  such  intent,  remains  absent; 
or  conceals  himself  to  avoid  the  service  of  legal  process;  or  con- 
ceals or  is  removing  any  of  his  property  to  avoid  its  being 
attached  or  taken  on  legal  process;  or  being  insolvent  has  suf- 
fered his  property  to  remain  under  attachment  or  legal  pro- 
cess for  four  days;  or  has  confes  .;d  or  offered  to  allow  judg- 
ment in  favor  of  any  creditors;  or  wilfully  suffered  judgment 
to  be  taken  against  him  by  default;  or  has  suffered  or  procured 
his  property  to  be  taken  on  legal  process  with  intent  to  give  a 
preference  to  one  or  more  of  his  creditors;  or  has  made  an 
assignment,  gift,  sale,  conveyance,  or  tranfer  of  his  estate,  pro- 
perty, rights,  or  credits,  with  intent  to  delay,  defraud  or  hin- 
der his  creditors;  or  in  contemplation  of  insolvency  has  made 
any  payment,  gift,  grant,  .sale,  conveyance,  or  transfer  of  his 
estate,  property,  rights  or  credits;  or  has  been  arrested  and  held 
in  custodj'  by  virtue  of  any  civil  process  of  Court  founded  on 
any  debt  or  demand,  and  such  process  remains  in  force,  and 
not  discharged  by  payment  or  otherwise  for  a  period  of  four 


mm 


'4 


r: 


If 


ril'ir 


»1 


128 


California. 


[Part  3 


(lays;  or  being  a  merchant  or  tradesman  has  stopped  or  sus- 
pended, and  not  resumed  payment  within  a  period  of  forty 
days  after  maturity  of  any  written  acknowledgment  of  indebt- 
edness, unless  the  party  holding  such  acknowledgment  has,  in 
writing,  waived  the  right  to  proceed  under  this  subdivision  ; 
or  being  a  bank  or  banker,  agent,  broker,  factor,  or  commis- 
sion merchant,  has  failed  for  forty  days  to  pay  any  moneys 
deposited  with  or  received  by  him  in  a  fiduciary  capacity,  upon 
demand  of  payment,  except  savings  and  loan  banks,  or  associa- 
tions who  loan  the  money  of  their  stockholders  and  depositors 
on  real  estate,  and  provide  iu  their  by-laws  for  the  re-payment 
of  such  deposits.  The  petitioners  may,  from  time  to  time, 
amend  and  correct  the  petition,  so  that  the  same  shall  conform 
to  the  facts,  by  leave  of  the  Court  befoi'e  which  the  proceed- 
ings are  pending,  but  nothing  in  this  section  shall  be  construed 
to  invalidate  any  loan  of  actual  value,  or  the  security  therefor, 
made  in  good  faith  upon  security  taken  upon  good  faith  on  the 
occasion  of  making  of  such  loan;  the  said  petition  shall  be 
accompanied  by  a  bond,  with  two  sureties  in  the  penal  sum  of 
at  least  five  hundred  dollars,  conditioned  that  if  the  debtor 
should  not  be  declaretl  an  insoh  cut,  the  petitioners  will  pay  all 
costs  and  damages,  including  a  reasonable  attorney's  fee,  that 
the  debtor  may  sustain  by  reason  of  the  filing  of  said  petition. 
The  Court  may,  upon  motion,  direct  the  filing  of  an  additional 
bond  with  different  sureties  when  deemed  necessary. 

Sec,  9.  Order  Court — Upon  the  filing  of  such  creditors' 
petition  the  Court  shall  issue  an  order  requiring  such  debtor  to 
show  cause,  at  a  time  and  place  to  be  fixed  by  said  Court,  why 
he  should  not  be  adjudged  an  insolvent  debtor,  and  at  the  same 
time,  or  thereafter,  upon  good  cause  shown  therefor,  said  Court 
may  make  an  order  forbidding  the  payment  of  any  debts,  and 
the  delivery  of  any  property  belonging  to  such  debtor  to  him 
or  for  his  use,  or  the  transfer  of  any  property  by  him. 

Sec.  10.  Cojn/ of  petition  to  he  served  on  debtor. — A  copy 
of  said  petition,  with  a  copy  of  the  order  to  show  cause,  shall 
be  served  on  the  debtor  in  the  same  manner  as  is  provided 


Chap.  44] 


California. 


129 


,ide(l 


by  law  for  the  .service  of  summons  in  civil  actions,  but  such 
•service  shall  be  made  at  least  ten  days  before  the  time  fixed 
for  the  hearing;  provided,  that  if  for  any  reason  the  service 
is  not  made,  the  order  may  be  renewed,  and  the  time  and  place 
of  hearing  changed;  or  by  a  supplemental  order  by  the  Court; 
or  if  such  debtor  cannot  be  found,  or  his  place  of  abode  ascer- 
tained, service  .shall  be  made  by  publication  as  is  provided  in 
the  Code  of  Civil  Procedure  for  service  of  suunnons  by 
publication. 

Sec.  11.  Demurrer. — At  the  time  fixed  for  the  hearing  of 
said  order  to  show  cause,  or  such  other  time  as  it  may  be 
adjourned  to,  the  debtor  may  demur  to  the  petition  for  the 
same  causes  as  is  provided  for  demurrer  in  other  cases  by  the 
Code  of  Civil  Procedure.  [See  elsewhere.]  If  the  de".!'irrer 
be  overruled,  the  debtor  shall  have  ten  days  thereaftc.  in  which 
to  answer  the  petition.  If  the  debtor  answer  the  petition,  such 
answer  shall  contain  a  specific  denial  of  the  material  allega- 
tions of  the  petition  controverted  by  him,  and  shall  be  verified 
in  the  same  manner  as  pleadings  in  civil  actions;  and  the 
issues  raised  thereon  may  be  tried  with  or  without  a  jury, 
according  to  the  practice  provided  bj'  law  for  the  trial  of  civil 
actions. 

Sec;.  12.  Court  to  require  debtor  to  file  schedule,  etc. — If 
the  respondent  shall  make  default,  or  if,  after  a  trial,  the  issues 
are  found  in  favor  of  the  petitioners,  the  Court  shall  make  an 
order  adjudging  that  said  respondent  is,  and  was  at  the  time 
of  filing  the  petition,  an  insolvent  debtor,  and  shall  require  said 
<lebtor,  within  such  time  as  the  Court  may  designate,  to  file  in 
Court  the  schedule  and  inventory  provi<led  for  in  sections  three 
and  four  of  this  Act;  and  thereupon  all  proceedings  shall  be 
had  in  said  matter  in  the  same  manner  as  if  said  debtor  had 
voluntarily  filed  his  petition. 

Sec.  13.  Proceedings,  when  dismisseil. — If,  upon  such 
hearing  or  trial,  the  issues  are  found  in  favor  of  the  respondent, 
the  proceedings  shall  be  dismissed,  and  the  respondent  shall 


it-, 


m 

if 


I: 


liil 


1 


.■tf< 


130 


California. 


[Part  3 


recover  costs  from  the  petitioning  creditors  in  the  same  manner 
as  on  final  judgment  in  civil  actions. 

Sec.  14.  Failure  to  appear  after  sendee,  etc. — If  the  debt- 
or has  failed  to  appear  after  service,  personally  or  by  publica- 
tion, or  is  absent,  or  cannot  be  found,  the  schedule  and  inven- 
tory may  be  prepared  by  the  Sheriff,  or  by  the  assignee,  from 
the  best  information  he  can  obtain. 

Assignees. 

Sec.  15.  Election  of — Bonds. — At  a  meeting  of  creditors 
in  open  Court,  those  having  proven  their  claims  by  filing  a 
verified  statement  showing  the  amount,  nature  and  security,  if 
any,  shall  proceed  to  the  election  of  one  assignee.  The  assignee 
shall  be  a  resident  of  the  county  where  the  insolvent  resides, 
or  where  he  has  carried  on  his  business.  In  electinj;  an 
assignee,  the  opinion  of  the  majority  in  amount  of  claims  shall 
prevail.  The  Clerk  of  the  Court  shall  keep  a  minute  of  the 
deliberations  of  said  creditors,  and  of  the  election  and  appoint- 
ment of  an  assignee,  and  enter  the  same  upon  the  records  of 
the  Court.  The  assignee  shall  file  within  five  daj's,  unless  the 
time  l)e  extended  by  the  Court,  with  the  Clerk,  a  bond  in  an 
amount  to  be  fixed  by  the  Court,  to  the  State  of  California, 
with  two  or  more  sufficient  sureties  approved  by  the  Court, 
and  conditioned  for  the  faithful  performance  of  the  duties 
devolving  upon  him.  The  bond  shall  not  be  void  upon  the 
first  recovery,  but  may  be  sued  upon  from  time  to  time  by  any 
creditor  aggrieved,  in  his  own  name,  until  the  whole  penalty 
is  exhausted.  The  sureties  on  such  bond  may  be  required  to 
justify,  upon  the  application  of  any  party  interested,  in  the 
same  manner  as  bail  upon  arrest  in  civil  cases. 

Sec.  10.  Assignee,  when  apiminted. — If,  on  the  day 
appointed  for  the  meeting,  the  creditors  do  not  attend,  or 
refuse  to  elect  an  assignee:  or  if,  after  election,  the  assignee 
shall  fail  to  qualify  within  the  proper  time,  it  shall  be  lawful 
for  the  C;.ui't  l)efore  which  the  said  meeting  may  take  place 
to  appoint  an  assignee  and  fix  the  amount  of  his  bond. 


Chap.  44] 


California. 


131 


Sec.  17.  Ansignment. — As  soon  as  an  a.ssignee  is  appointed 
and  (jualified,  the  Clerk  of  the  Court  shall,  by  an  instrument 
under  his  hand  and  seal  of  the  Court,  assign  and  convey  to  the 
assignee  all  the  estate,  real  and  personal,  of  the  debtor,  with 
all  his  deeds,  books  and  papers  relating  thereto,  and  such 
assignment  shall  relate  back  to  the  commencement  of  the  pro- 
ceeilings  in  insolvency,  and  by  operation  of  law  shall  vest  the 
title  to  all  such  property  and  estate,  both  real  and  personal,  in  the 
assignee,  although  the  same  is  then  attached  on  mesne  process, 
as  the  property  of  the  debtor,  and  shall  dissolve  any  attach- 
ment made  within  one  month  next  preceding  the  commence- 
ment of  the  insolvency  proceedings.  Such  assignment  shall 
operate  to  vest  in  the  assignee  all  the  estate  of  the  insolvent 
debtor  not  exempt  by  law  from  execution. 

Sec.  18.  AiUhorltif  of  Assignee. — The  a.s.signee  .shall  have 
the  right  to  recover  all  the  estate,  debts  and  effects  of  said 
insolvent.  If  at  the  time  of  the  commencement  of  proceedings 
in  insolvency  an  action  is  pending  in  the  name  of  the  debtor 
for  the  recovery  of  a  debt  or  other  thing  which  might  or  ought 
to  pass  to  the  a.ssignee  by  the  assignment,  the  assignee  shall  be 
allowed  and  admitted  to  prosecute  the  action,  in  like  manner 
and  with  like  effect  as  if  it  had  been  originall}'  commenced  by 
him.  In  suits  prosecuted  by  the  as.signee,  a  certified  copy  of 
the  assignment  made  to  him  shall  be  conclusive  evidence  of  his 
authoi-ity  to  sue. 

Sec.  19.  Recording  assignment. — The  assignee  shall,  with- 
in one  month  after  the  making  of  the  assijjnment  to  him,  cause 
the  same  to  be  recorded  in  every  county,  or  city  and  county, 
within  this  State,  where  any  lands  owned  by  the  debtor  are 
situated,  and  the  record  of  such  assignment,  or  a  duly  certified 
ct)py  thereof,  shall  be  conclusive  evidence  thereof  in  all  Courts. 

Sec.  20.  Resignation  of  Assignee — Any  assignee  may  at 
any  time,  by  writing  filed  in  Court,  resign  his  appointment, 
having  first  settled  his  accounts,  and  delivered  up  all  the  estate 
to  such  successor  as  the  Court  shall  appoint;  provided,  that  if, 
in  the  discretion  of  the  Court,  the  circumstances  of  the  case 


)l 


'" 


i 


132 


California. 


[Part  3 


til'--,  ■'. 


require  it  upon  good  cause  being  shown,  the  Court  may,  at 
any  time  before  such  settlement  of  account  and  delivery  of  the 
estate  shall  have  been  completed,  revoke  the  appointment  of 
such  assignee  and  appoint  another  in  his  stead.  The  liability 
of  the  outsroinji  assisjnee,  or  of  the  sureties  on  his  bond,  shall 
not  be  in  any  manner  discharged,  released,  or  affected  by  such 
appointment  of  another  in  his  stead. 

Sec.  21.  Powers  of  Assignee. —  The  said  assignee  shall 
have  power: 

1.  To  sue  in  his  uwn  name,  and  recover  all  the  estate,  debts 
and  things  in  action  belonging  or  due  to  such  debtor,  and  no 
set-off  or  counter-claim  shall  be  allowed  in  any  such  suit  for 
any  debt,  unless  it  was  owing  to  such  creditor  by  such  debtor 
at  the  time  of  the  adjudication  of  insolvency. 

2.  To  take  into  his  possession  all  the  estate  of  such  debtor 
except  property  exempt  by  law  from  execution,  whether 
attached  or  delivered  to  him  or  afterwards  discovered,  and  all 
books,  vouchers,  evidence  of  indebtedness,  and  securities  be- 
longing to  the  same. 

3.  In  case  of  a  non-resident,  absconding,  or  concealed 
debtor,  to  demand  and  receive  of  every  Sheriff  who  shall  have 
attached  any  of  the  property  of  such  debtor,  or  who  shall  ha  ve 
in  his  possession  any  moneys  arising  from  the  sale  of  such 
property,  all  such  property  and  moneys,  on  paying  him  his 
lawful  costs  and  charges  for  attaching  and  keeping  the  same. 

4.  From  time  to  time  to  sell  at  public  auction  all  the 
estate,  real  and  personal,  vested  in  him  as  such  assignee,  which 
shall  come  to  his  possession  and  us  ordered  by  the  Court. 

5.  On  such  sales  to  execute  the  necessary  conveyances  and 
bills  of  sale. 

C.  To  redeem  all  valid  mortgages  and  conditional  contracts, 
and  all  valid  pledges  of  personal  property,  and  to  satisfy  any 
judgments  which  may  be  an  incumbrance  on  any  property 
sold  by  him,  or  to  sell  such  property  subject  to  such  mortgage, 
contracts,  pledges,  or  judgments. 

7.  To  settle  all  matters  and  accounts  between  such  debtor 
and  his  debtors  subject  to  the  approval  of  the  Court. 


Chap.  44] 


California. 


133 


8.  Under  the  order  of  the  Court  appointing  him,  to  com- 
pound with  any  person  indebted  to  such  debtor,  and  thereupon 
to  discharge  all  demands  against  such  person. 

0.  To  have  and  recover  from  any  person  receiving  a  con- 
veyance, gift,  transfer,  payment,  or  assignment,  made  contrary'' 
to  any  provision  of  this  Act,  the  property  thereby  transferred 
or  assigned,  or  in  case  a  redelivery  of  the  property  cannot  be 
had,  to  recover  the  value  thereof,  with  damages  for  the 
detention. 

Sec.  22.  Insolvent  to  deliver  books,  etc.,  to  the  Court. — 
The  insolvent  shall,  either  before  or  on  the  day  appointed  for 
the  meeting  of  creditors,  deliver  to  the  Court  all  the  commercial 
or  account  books  he  may  have  kept,  which  books  shall  be 
deposited  in  the  Clerk's  office  of  said  Court.  Said  insolvent 
shall  also  deliver  to  the  Court,  at  the  same  time,  all  vouchers, 
notes,  bonds,  bills,  securities,  or  other  evidences  of  debt,  in  any 
manner  relating  to,  or  having  any  bearing  upon  or  connection 
with  the  property  surrendered  by  said  debtor,  and  all  such 
papers  or  securities  shall  be  deposited  in  the  Clerk's  office  of 
said  Court,  and  the  Clerk  shall  hand  them  over,  together  with 
the  books  of  the  insolvent,  to  the  assignee  who  may  be 
appointed. 

Sec.  23.  Embeizlement. — If  any  person,  before  the  assign- 
ment is  made,  having  notice  of  the  commencement  of  proceed- 
ings in  insolvency,  embezzles  or  disposes  of  any  of  the  moneys, 
goods,  chattels,  or  effi3cts  of  the  insolvent,  he  is  chargeable 
therewith,  and  liable  to  an  action  by  the  assignee  for  double 
the  value  of  tlie  property  so  embezzled  or  disposed  of,  to  be 
recovered  for  the  benefit  of  the  estate. 

Sec.  24.  Penalties. — The  same  penalties,  forfeitures,  and 
proceedings  by  citation,  examination,  and  commitment,  .shall 
apply  on  behalf  of  an  assignee  against  persons  suspected  of 
having  concealed,  embezzled,  conveyed  away,  or  disposed  of 
any  property  of  the  debtor,  or  of  having  possession  or  know- 
ledge of  anj''  deeds,  conveyances,  bonds,  contracts,  or  other 


.:) 


h 


;!| 


I 


'jS  u 


I  III 


i  ill 


134 


C'ALIFOKXIA. 


[Part  3 


ft 


writings  which  relate  to  any  interest  of  the  debtor  in  any  renl 
or  personal  estate,  as  provided  in  the  case  of  the  estate  of  de- 
ceased persons  in  sections  one  thousand  four  hundred  and  fifty- 
nine,  one  thousand  four  hundred  and  sixty,  and  one  thousand 
four  hundred  and  sixty-one  of  the  Code  of  Civil  Procedure. 

Sec.  25.  Estate  to  be  converted  into  nwney. — The  assi<,'noc 
shall  as  speedily  as  possible  convert  the  estate,  real  and  person- 
al, into  money.  He  shall  keep  a  regular  account  of  all  moneys 
received  by  him  as  assignee,  to  which  every  creditor  or  other 
person  interested  therein  may,  at  all  reasonable  times,  have 
access.  No  private  sale  of  any  property  of  the  estate  of  an 
insolvent  debtor  shall  be  valid  unless  made  under  the  order  of 
the  Court  upon  a  petition  in  writing,  which  shall  set  forth  the 
facts  showing  the  sale  to  be  necessary.  Upon  filing  the  peti- 
tion, notice  of  at  least  ten  days  shall  be  given  by  publication 
and  mailing,  in  the  same  manner  as  is  provided  in  section  seven 
of  this  Act.  If  it  appears  that  a  private  sale  is  for  the  best 
interest  of  the  estate,  the  Court  shall  order  it  to  be  made. 

Sec.  26.  When  Court  may  order. — When  it  appears  to  tin; 
satisfaction  of  the  Court  that  the  estate  of  the  debtor,  or  any 
part  thereof,  is  of  a  perishable  nature,  or  is  liable  to  deterior- 
ate in  value,  or  is  disproportionately  expensive  to  keep,  the 
Court  may  order  the  same  to  be  sold  in  such  manner  as  may 
be  deemed  most  expedient,  under  the  direction  of  the  Sheriff 
or  assignee,  as  the  case  may  be,  who  shall  hold  the  funds 
received  in  place  of  the  property  sold  until  the  further  order 
of  the  Court. 

Sec.  27.  Outstandlmj  Debts. — Outstanding  debts,  or  other 
property  due  or  belonging  to  the  estate,  which  cannot  be  col- 
lected and  received  by  tlie  assignee  without  unreasonable  or 
inconvenient  delay  or  expense,  may  be  sold  and  assigned  in 
like  manner  as  the  i*emainder  of  the  estate. 

Sec.  28.  Expenses  of  assignees. — Assignees  .shall  be  allowed 
all  nece.ssary  expenses  in  the  care,  management  and  settlement 
of  the  estate,  and  shall  collectively  be  entitled  to  charge  an<i 


it 


Cliap.  44] 


Califohnia. 


Uio 


receive  for  their  services  coiniui.ssions  upon  all  sums  of  uioiioy 
couiinj^  to  their  hands  and  accounted  for  l>y  them,  as  follows: 
For  the  first  thousand  dollars,  at  the  rate  of  seven  per  cent.; 
for  all  above  that  sum  and  not  exceeding  ten  tlu)Usund  dollurs, 
at  the  rate  of  five  per  cent;  and  for  all  ahove  thjit  sum  at  the 
rate  oi  four  per  cent. 

SE'.'.  29.  Assignee  to  make  e.clnhU  tu  thr  Court.— A.t  t)ie 
expiration  of  three  months  fvom  the  appt)intment  of  the 
assignee  in  any  case,  or  as  much  earlier  as  the  Court  may  di- 
rect, the  assignee  .shall  exhibit  to  the  court  and  to  the  creditors, 
and  file  just  and  true  accounts  of  all  his  receipts  and  payments, 
verified  by  his  oath,  and  a  statement  of  the  property  outstand- 
ing, specifying  the  cause  of  its  outstanding,  also  what  debts  or 
claims  are  yet  undetermined,  and  stating  what  sum  remains  in 
his  po.s.se.ssion ;  i.,nd  thereupon  a  dividend  shall  be  made,  unless 
for  cause  the  Court  .shall  otherwise  order.  Thereafter  further 
accounts,  statements,  and  dividends  shall  be  made  in  like  num- 
ner  as  occasion  requires. 

Sec.  .so.  Court  may  order  assignee  to  file  account. — The 
Court  .shall,  at  any  time,  upon  the  motion  of  any  two  or  more 
creditors,  re(|uire  the  as.signee  to  file  his  account,  and  if  he  has 
funds  subject  to  distribution  he  shall  be  retpiired  to  distribute 
them  without  delay. 

Sec.  31.  Creditors  to  .share  pro  rata. — All  creditors  whose 
debts  are  duly  proved  and  allowed  .shall  be  entitled  to  share 
in  the  property  and  estate  j>ro  rata  without  prioritj'  or  prefer- 
ence whatever,  other  than  as  provided  in  tliis  Act,  and  in  .sec- 
tion one  thousand  two  hundred  and  four  of  the  Code  of  Civil 
Procedure;  provided,  that  any  debt  provetl  by  any  person  liable 
as  bail  .surety,  guarantor,  or  otherwise,  for  the  debtor,  shall 
not  be  paid  to  the  person  so  proving  the  same  until  satisfac- 
tory evidence  shall  be  produced  of  the  payment  of  such  debt 
by  such  person  so  liable;  and  the  share  to  which  such  debt 
would  be  entitled  may  be  paid  into  Court,  or  otherwise  held 
for  the  benefit  of  the  party  entitled  thereto,  as  the  Court  n»ay 


Ui', 


it       'D^'  ^i 


:'rt 


13() 


California, 


[Part  3 


:  1, 


81 V  - 


fti^ 


direct.  [Sect'  '  '  1204  of  the  Civil  Code  declares  wages  to  the 
amount  of  $100  for  services  performed  within  sixty  days  to  be 
preferred.] 

Sec.  32.  No  dividend  already  declared  shall  be  distributed 
by  reason  of  debts  being  sub-sequently  proved,  but  the  creditors 
proving  such  debts  .shall  be  entitled  to  a  dividend  equal  to 
those  already  received  by  tlie  other  creditors,  before  any  fur- 
ther dividend  is  made  to  iie  latter;  provided,  the  failure  to 
prove  such  claim  shall  not  have  re.sulted  from  his  own  neglect. 

SEt;.  33.  DiscluD'ife  of  assiynee — Should  the  assignee  refuse 
or  neglect  to  render  his  accounts  as  required  by  sections  tnirty 
and  thirty-one,  or  pay  over  a  dividend  when  he  shall  have,  in 
the  opinion  of  the  Court,  sufficient  funds  for  that  purpose,  the 
Court  shall  immediately  diocharge  such  a.ssignee  from  his  trust, 
and  shall  have  power  to  appoint  another  in  his  place.  The 
assignee  so  discharged  shall  forthwith  deliver  over  ^o  the 
assignee  appointed  by  the  Court  all  the  funds,  property  books, 
vouchers,  or  securities  l)el<>nging  to  the  insolxent,  ..lihout 
chargnig  or  retaining  any  counuissiou  or  compensation  for  his 
personal  .services. 

Sec.  34.  Final  dcvount  of  aasiijnee — Preparatory  to  the 
final  account  and  dividend,  the  a.ssignee  shall  submit  hi.s 
account  to  the  Court  an  1  file  the  same,  and  shall,  at  the  time 
of  filing,  accompany  the  same  with  an  affidavit  that  notice  by 
mail  has  been  given  to  all  creditors  who  proved  their  claims; 
that  he  will  apply  for  a  settlement  of  his  account,  and  for  a 
discharge  from  all  liab'lity  as  a.ssignee  at  a  thne  specified 
in  such  notice,  which  time  shall  be  not  less  than  ten  nor  more 
than  twcntv  days  from  such  fili.isj.  At  the  hcarinir  the 
Court  shall  au<iit  the  account,  and  any  person  interested  may 
apptvir  and  file  excepti(ms  in  writing,  and  contest  thu  .ame. 
The  Court  thereupon  shall  .settle  the  account  and  order  a  divi- 
dend of  any  portion  of  rlie  estate  nMnaming  undistributed.  an<l 
shall  discharge  the  assignee.  suiMcct  to  compliance  with  the 
order  of  the  Court,  from  all  liabdity,  a'<  a.ssignee,  to  any  cred- 
itor of  the  insolvent. 


Chap.  44] 


California. 


137 


Partnerships  and  Corporations. 

Sec.  35.  Two  or  more  persons  who  are  partners  in  busi- 
ness may  be  adjudged  insolvent,  either  on  the  petition  of  such 
partners  or  any  one  of  them,  or  on  the  petition  of  five  or  more 
creditors  of  the  partnership,  in  which  case  an  order  shall  be 
issued  in  the  manner  provided  by  this  Act,  upon  which  all  the 
joint-stock  and  property  of  the  partnership,  and  also  all  the 
separate  estate  of  each  of  the  partners  shall  be  taken,  except- 
ing such  parts  thereof  as  may  be  exempt  by  law,  and  all  the 
creditors  of  the  company,  and  the  separate  creditors  of  each 
partner,  shall  be  allowed  to  prove  their  respective  debts;  and 
the  assignee  shall  be  chosen  by  the  creditors  of  the  copartner- 
ship, and  shall  also  keep  separate  accounts  of  the  joint  stock 
or  propert}'  of  the  copartnership  and  of  the  separate  estate  of 
each  member  thereof,  and  after  deducting  out  of  the  whole 
"mount  received  by  such  assignee,  the  whole  amount  of  the 
expenses  and  disbursements,  the  net  proceeds  of  the  joint  .stock 
shall  be  a))propriated  to  pay  the  creditors  of  the  copartnership, 
and  the  net  proceeds  of  the  separate  estate  of  each  partner 
shall  be  appropriaterl  to  pay  his  separate  creditors;  and  if 
there  shall  be  any  balance  of  the  separate  estate  of  any  part- 
ner, after  the  payment  of  his  .separate  debt*,  such  balance  .shall 
Ik-  added  to  the  joint  stock  for  the  payment  of  the  joint  cred- 
itors; and  if  there  shall  be  any  balance  of  the  joint  stock  after 
the  payment  of  the  joint  debts,  such  balance  .shall  be  divided 
and  appropriated  to  and  among  the  separate  estate  of  the  .sev- 
eral partners  according  to  their  respective  right  and  interest 
therein,  and  as  it  would  have  been  if  the  partnersliip  had  been 
dissolved  without  any  insolvency;  and  the  sum  .so  appropri- 
ated to  tlie  separate  estate  of  each  partner  shall  be  applied  to 
the  payment  of  his  separate  debts,  and  the  certificate  of  dis- 
charge shall  be  granted  or  refu.sed  to  each  partner  as  the  .samr 
would  or  ought  to  be  if  the  proceedings  liad  been  by  or  against 
him  alone  under  this  Act;  and  in  all  other  respects  the  pro- 
ei'edings  as  to  ]>artners  siiall  be  cimducted  in  the  like  manner 
as  if  they  had  been  conunenced  and  pro.secuted  by  or  again.st 
«)ne  person  alone.     If  .such  copartners  reside  in  ditferent  coun- 


ts i 


138 


California. 


[Part  3 


lli 


1 
It 


[I 

El  ' 


if 


ties,  that  Court  in  which  the  petition  is  first  filed  shall  retain 
exclusive  jurisdiction  over  the  case.  If  the  petition  be  filed  by 
less  than  all  the  partners  of  a  copartnership,  those  partners 
who  do  not  join  in  the  petition  shall  be  ordered  to  show  cause 
why  they  should  not  be  adjudfred  to  be  in.solvent  in  the  same 
manner  as  other  debtors  are  required  to  show  cause  upon  a 
•creditor's  petition,  as  in  this  Act  provided. 

Sec.  36.  Applicable  to  covporotions. — The  provisions  of 
this  Act  shall  apply  to  corporations,  and  upon  the  petition  of 
any  officer  of  any  corporation,  duly  authorized  by  the  vote  of 
the  Board  of  Directors  or  Trustees,  at  a  meeting  specially  called 
for  that  purpose,  or  by  the  assent  in  writinjf  of  a  majority  of  the 
Directors  or  Trustees,  as  the  case  may  be,  or  upon  a  creditor's 
petition  made  and  presented  in  the  manner  provided  in  respect 
to  debtors,  the  like  proceedinf^s  shall  be  had  and  taken  as  are 
provided  in  the  case  of  debtors.  All  the  provisions  of  this 
Act  which  shall  apply  to  the  debtor,  or  set  forth  his  duties, 
examination,  ami  liabilities,  or  prescribe  penalties,  or  relate  to 
fraudulent  conveyances,  payments,  and  assignments,  apply  to 
each  and  every  officer  of  any  corporation  in  relatiini  to  the 
same  matters  concerning  the  corporation.  Whenever  any  cor- 
poration is  declared  insolvent,  all  its  property  and  assets  shall 
be  distributed  to  the  creditors;  but  no  discharge  shall  be 
granted  to  any  corporation.  , 

Proof  of  Debts. 

Sec.  37.  All  debts  due  and  pa3'able  from  the  doctor  at  the 
time  of  the  adjudication  of  insolvency,  and  all  debts  then  e.\ist- 
ing  but  not  payabh'  until  a  future  time,  a  rdtate  of  interest 
being  made,  when  no  interest  is  payable  by  the  terms  of  th(j 
contract,  may  be  proved  against  the  estate  of  the  debtor. 

Sec.  3(S.  Proof  <>/  ilcmandx  iuiainut  t/ir  ilebtor.  —  All 
demands  auainst  the  debtor  for  or  on  account  of  anv  sjfoods 
or  chattels  wrongfully  taken,  converted,  or  withheld  by  him, 
may  be  proved  and  allowetl  as  debts  to  the  amount  of  the 
value  i)f  the  property  so  withheld,  from  the  time  of  the 
conversion. 


Chap.  44] 


California, 


139 


Sec.  39.  If  the  debtor  shall  be  bound  as  indorser,  suretj', 
bail,  or  guarantor,  upon  any  bill,  bond,  note,  or  other  specialt}- 
or  contract,  or  for  any  debt  of  another  person,  and  his  liability 
shall  not  have  become  absolute  until  the  adjudication  of  insolv- 
ency, the  creditor  may  prove  the  same  after  such  liability 
shall  have  become  fixed,  and  before  the  final  dividend  shall 
have  be(in  declared. 

Sec.  40.  In  all  cases  of  contingent  debts,  and  contingent 
liabilities  contracted  by  the  debtor,  and  not  herein  otherwise 
provided  for,  the  creditor  may  make  claim  therefor  and  have 
his  claim  allowed,  with  the  right  to  share  in  the  dividends  if 
the  contingency  shall  happen  before  the  order  for  the  final 
dividend,  or  he  may  at  any  time  apply  to  the  Court  to  have 
the  present  value  of  the  debt  or  liability  ascertained  and  licjui- 
dated,  which  shall  be  done  in  such  manner  as  the  Court  shall 
order,  and  shall  be  allowed  to  prove  for  the  amount  so  ascer- 
tained. 

Sec:.  41.  Any  person  liable  as  bail,  surety,  or  guarantor, 
or  otherwise,  for  the  debtor  who  shall  have  paid  the  debt,  or 
any  part  thereof,  in  discharge  of  the  whole,  shall  be  entitled  to 
prove  such  debt,  or  to  stand  in  the  place  of  the  creditor,  if  he 
.shall  have  proved  the  same,  although  such  payments  shall  have 
been  made  after  the  proceedings  in  insolvency  were  commenced : 
and  any  person  so  liable  for  the  <lebtor,  and  who  has  not  paid 
the  whole  of  said  debt,  but  is  still  liable  for  the  same,  or  any 
part  tliereof,  may,  if  the  creditor  shall  fail  or  omit  to  prove 
such  debt,  prove  the  same  in  the  name  of  the  creditor. 

Sec.  42.  Where  the  debtor  is  liable  to  pay  rent,  or  other 
debt  falling  due  at  fi.ved  and  stated  periods,  the  creditor  may 
prove,  for  a  proportionate  part  thereof  up  to  the  time  of  the 
insolvency,  as  if  the  same  became  due  from  day  to  dav,  and 
not  at  such  fi.xed  and  stated  periods. 

Sec.  43  In  all  cases  ol  mutual  debts  and  mutual  cretlits 
between  the  parties,  the  account  between  them  shall  be  stated, 
and  one  debt  sot-oti'  against  the  other,  and  the  balance  t)nly 


;■* 


140 


California. 


[Part  3 


111 

d 

r    fir 

v  ■* 

1 


li^; 


shall  be  allowed  and  paid.  But  no  set-off  or  counter-claim 
shall  be  allowed  of  a  claim  in  its  nature  not  provable  against 
the  estate;  provided,  that  no  set-off  or  counter-claim  shall  be 
allowed  in  favor  of  any  debtor  to  the  insolvent  of  a  claim  pur- 
chased by  or  transferred  to  him  after  the  filing  of  a  petition 
by  or  against  him,  for  the  purpose  of  making  such  .set-off  or 
counter-claim. 

Sec.  44.  When  a  creditor  has  a  mortgage  or  pledge  of  real 
or  personal  property  of  the  debtor,  or  a  lien  thereon,  for  secur- 
ing the  payment  of  a  debt  owing  to  him  from  tlie  debtor,  he 
shall  be  admitted  as  a  creditor  only  for  the  balance  of  the  debt, 
after  deducting  the  value  of  such  property,  to  be  ascertained 
by  agreement  between  him  and  the  assignee,  or  by  a  .sale 
thereof,  to  be  made  in  such  manner  as  the  Court  shall  direct; 
or  the  creditor  may  release  or  convey  his  claim  to  the  assignee, 
upon  such  property,  and  be  admitted  to  prove  his  whole  debt. 
If  the  value  of  the  property  exceeds  the  sum  for  which  it  is  so 
held  as  .security,  the  assignee  may  release  to  the  creditor  the 
<lebtor's  right  of  redemption  thereon  on  receiving  such  excess; 
or  he  may  sell  the  property,  subject  to  the  claim  of  the  creditor 
thereon,  and  in  either  case  the  assignee  and  creditor  respectively 
shall  execute  all  deeds  and  writings  necessary  or  proper  to 
consummate  the  transaction.  If  the  property  is  not  sold  or 
released,  and  delivered  up,  the  creditor  shall  not  be  allowed  to 
prove  any  part  of  his  debt. 

Sec.  45.  No  creditor  proving  his  debt  or  claim  .shall  be 
allowed  to  maintain  any  suit  at  law,  or  in  equity  therefor 
against  the  debtor,  V)ut  shall  be  deemed  to  have  waived  all 
right  of  action,  and  suit  against  him,  and  all  proceedings 
already  commenced,  or  unsatisfied  judgments  already  obtained 
thereon,  .shall  bo  deemed  to  be  discharged  ami  surrendered 
thereby;  proridcd,  that  no  valid  lien  existing  in  good  faith 
thereunder  .shall  be  thereby  affected;  (ind  further  provided^ 
that  a  creditor  proving  his  debt  or  claim  shall  not  be  held  to 
luive  waived  his  right  of  action  or  suit  against  the  debtor 
where  a  discharge  has  been  refused,  or  the  proceedings  have 


Chap.  44] 


California. 


141 


determined  without  a  discharge.  And  no  creditor  who.se  del>t 
i.s  provable  under  this  Act  .shall  be  allowed,  after  the  com- 
mencement of  proceedings  in  insolvency,  to  prosecute  to  final 
judgment  any  action  therefor  against  the  debtor  until  the 
(juestion  of  the  debtor'.s  discharge  shall  have  boen  determined, 
and  any  .such  suit  or  proceeding  shall,  upon  the  application  of 
the  debtor,  or  any  creditor,  d  of  the  a.s.signee,  be  stayed  to 
await  the  determination  of  the  Court  in  insolvency  on  the 
question  of  discharge;  provided,  there  be  no  unreasonable 
delay  on  the  part  of  the  debtor,  or  of  the  petitioning  creditors, 
as  the  case  may  be,  in  prosecuting  the  case  to  its  conclusion : 
and  'provided,  (dno,  that  if  the  amount  due  the  creditor  is  in 
dispute,  the  suit,  by  leave  of  the  Court  in  insolvency,  may  pro- 
ceed to  judgment  for  the  purpose  of  ascertaining  the  amount 
due,  which  amount  may  be  proven  in  insolvency,  but  execution 
shall  be  stayed  as  aforesaid;  provided,  further,  that  where  a 
valid  lien  or  attachment  has  been  accjuired  oi-  secured  in  any 
such  action,  an<l  an  undertaking  been  oft'ered  and  accepted  in 
lieu  of  such  lien  or  attachment,  the  case  may  be  prosecuted 
to  final  judgment  for  the  purpose  of  fixing  the  liability  of  the 
sureties  upon  such  undertaking;  but  execution  against  the 
insolvent  upon  such  judgment  shall  be  stayed. 

Sec.  4(5.  Any  person  who  .shall  have  accepted  any  prefer- 
ences, having  reasonable  cause  to  believe  that  the  same  was 
made  or  given  by  the  debtor  contrary  to  any  provision  of  this 
Act,  shall  not  prove  the  debt  or  claim,  on  account  of  which  the 
preference  was  made  or  given;  nor  shall  he  receive  any  divi- 
dend thereon  until  he  shall  first  have  surrendered  to  the 
assignee  all  property,  money,  benefit,  or  advantage  received  by 
him  under  such  preference. 

Sec.  47.  The  Court  may,  upon  the  application  of  the  as- 
signee, or  of  any  creditor  of  the  debtor,  or  without  any  applica- 
tion, before  or  after  adjudication  in  insolvency,  examine  upon 
oath  the  debtor  in  relation  to  his  property  and  his  estate,  and 
any  person  tendering  or  making  proof  of  claim.s,  and  may  .sub- 
p(ena  witnesses  to  give  evidence  relating  to  such  matters.     All 


m 


142 


California. 


[Part  3 


examination  of  witnesses  shall  be  had  and  depositions  shall  be 
taken  in  accordance  with  and  in  the  same  manner  as  is  pi'o- 
vided  by  the  Code  of  Civil  Procedure. 


hi 

i 


Discharge. 

Sec.  48.  At  any  time  after  the  expiration  of  three  months 
from  the  adjudication  of  insolvency,  the  debtor  may  apply  to 
the  Court  for  a  discharge  from  his  debts,  and  the  Court  shall 
thereupon  order  notice  to  be  given  to  all  creditors,  who  have 
proved  their  debts,  to  appear,  on  a  day  appointed  for  that  pur- 
pose, and  show  cause  why  a  discharge  should  not  be  granted 
to  the  debtor;  said  notice  shall  be  given  by  mail  and  by  pub- 
lication at  least  once  a  week,  for  four  weeks,  in  a  newspaper 
publisheil  in  the  county,  or,  if  there  be  none,  in  a  newspaper 
published  nearest  such  county;  provided,  that  no  debts  have 
been  proven,  such  notice  shall  not  be  required. 

Sec.  41).  No  discharge  shall  be  granted,  or  if  granted  .shall 
be  valid,  if  the  debtor  shall  have  sworn  falsely  in  his  atfidavit, 
annexed  to  his  petition,  schedule,  or  inventory,  or  upon  any 
examination  in  the  course  of  the  proceedings  in  insolvency,  in 
relation  to  any  material  fact  concerning  his  estate,  or  his  debts 
or  to  any  other  material  fact;  or  if  he  has  concealed  any  part 
of  his  estate  or  ettects,  or  any  books  or  writings  relating 
thereto;  or  if  lie  has  been  guilty  of  fraud  or  willful  neglect  in 
the  care,  custod)-,  or  delivery  to  the  assignee  of  the  propertj' 
belonging  to  him  at  the  time  of  the  presentation  of  his  petition 
and  inventory,  excepting  such  property  as  he  is  permitted  to 
retain  under  the  provisions  of  this  Act.  or  if  he  has  cau.sed  or 
permitted  any  loss  or  <lestruction  thereof;  or  if,  within  one 
month  before  the  commencement  of  such  proceedings,  he  has 
procured  his  lands,  goods,  money,  or  chattels  to  be  attachetl,  or 
sL'ized  on  execution;  if  he  has  destroyed,  iiuitilated,  altered,  or 
falsified  any  of  his  books,  documents,  papers,  writings,  or  secur- 
ities, or  has  made  or  been  privy  to  the  making  of  any  false  or 
fraudulent  entry  in  any  book  of  account  or  other  document 
with  intent  to  defraud  his  creditors;  or  if  he  has  jjiven  any 


Chap   44] 


California. 


143 


fraudulent  preference  contrary  to  the  provisions  of  this  Act;  or 
made  any  fraudulent  payment,  gift,  transfer,  conveyance;  or 
assignment  of  any  part  of  his  property;  or  has  lost  any  part 
thereof  in  gaming;  or  has  admitte<l  a  false  or  fictitious  debt 
against  his  estate;  or  if,  having  knowledge  that  any  person 
has  proven  such  false  or  fictitious  debt,  he  has  not  disclosed 
the  same  to  his  assignee  within  one  month  after  such  knowl- 
edge; or  if,  being  a  merchant  or  tradesman,  he  has  not,  subse- 
quently to  the  passage  of  this  Act,  kept  proper  books  of 
account;  or  if  he  or  any  other  person  on  his  account,  or  in  his 
behalf,  has  influenced  the  action  of  any  creditor  at  any  stage 
of  the  proceedings,  by  any  pecuniary  consideration  or  obliga- 
tion; or  if  he  lias  in  contemplation  of  becoming  insolvent  made 
an)'  pledge,  payment,  transfer,  assignment,  or  conveyance  of 
any  part  of  his  property,  directly  or  indirectly,  absolutely  or 
conditionally,  for  the  purpose  of  preferring  any  creditor  or  per- 
son having  a  claim  against  him,  or  who  is  or  may  be  under 
liability  for  him,  or  for  the  purpose  of  preventing  the  property 
from  coming  into  the  hands  of  the  assignee,  or  of  being  distrib- 
uted under  this  Act  in  satisfaction  of  his  debts;  or  if  he  has 
been  convicted  of  any  misdemeanor  under  this  Act,  or  has  been 
guilty  of  frautl  contrary  to  the  true  intent  of  this  Act;  or  in 
case  of  voluntary  insolvency  has  received  the  benefits  of  this 
or  any  other  Act  of  insolvency  or  bankruptcy  within  three 
years  next  preceding  his  application  for  discharge.  And  before 
any  discharge  is  granted,  the  debtor  .shall  take  and  subsci'ibe 
an  oath  to  the  eflect  that  he  has  not  done,  suttered  or  been 
privy  to  any  act,  matter,  or  thing  specified  in  this  Act,  as 
ground  for  withholding  such  discharge,  or  as  invalidating  such 
discharge,  if  granted. 

Sec.  50.  Opposition  to  dUckunje. — Any  creditor  opposing 
the  discharge  of  a  debtor  .shall  file  specifications,  in  writing,  of 
the  grounds  of  his  opposition,  and  after  the  debtor  has  filed  and 
.served  his  answer  thereto,  which  pleadings  shall  be  verifietl, 
the  Court  shall  try  the  issue  or  i.ssues  rai.sed,  with  or  without 
a  jury,  according  to  the  practice  provided  by  law  in  civil 
actions. 


;:«>MIIft    ■Bfr--»1 


144 


California. 


[Part  3 


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Sec.  51.  Certificate  of  Discharge. — If  it  shall  appear  to 
the  Court  that  the  debtor  has  in  all  things  conformed  to  his 
duty  under  this  Act,  and  that  he  is  entitled  under  the  provis- 
ions thereof  to  receive  a  discharge,  the  Court  shall  grant  him 
u  discharge  from  all  his  debts,  except  as  hereinafter  provided, 
and  shall  give  him  a  certiHcato  thereof,  under  the  seal  of  the 
Court,  in  substance  as  follows:     In  the  Superior  Court  of  the 

County  of  ,  State  of  California.     Whereas, has  been 

duly  adjudged  an  insolvent  under  the  insolvent  laws  of  this 
State,  and  appears  to  have  conformed  to  all  the  reiiuirements 
of  law  in  that  behalf,  it  is  therefore  ordered  by  the  Court  that 

said be  forever  discharged  from  all   debts   and   claims, 

which  by  said  insolvent  laws  are  made  provable  against  his 

estate,  and  which  existed  on  the day  of ,  on  which 

the  petition  for  adjudiaition  was  filed  by  (or  against)  him, 
excepting  such  debts,  if  any,  as  are  by  said  insolvent  laws 
excepted  from   the   operation   of  a  discharge   in   insolvency. 

Given  under  my  hand,  and  the  seal  of  the  Court,  this day 

of ,  A.  D.  18—.     Attest, Clerk.     [Seal.]     Judge. 

Sec.  52.  Fvawlnlent  Debts,  etc ,  not  discharged. — No  debt 
created  by  fraud  or  eml)ezzlement  of  the  debtor,  or  by  his 
defalcations  as  a  public  officer,  or  while  acting  in  a  fiduciary 
character,  shall  be  discharged  under  this  Act,  but  the  debt  may 
be  proved,  and  the  dividend  thereon  shall  lie  a  payment  on 
account  of  .said  debt;  and  no  discharge  granteil  tmder  this  Act 
shall  release,  discharge,  or  affect  any  person  liable  fof  the  same 
debt  for  or  with  the  debtor,  either  as  partner,  joint  contractor, 
indor.ser,  surety,  or  otherwise. 

Sec.  53.  Discharge  releases  debtor,  for  ivhat. — A  discharge, 
duly  granted  under  this  Act,  .shall,  with  the  exceptions  afore- 
said, release  the  debtor  from  all  claims,  debts,  liabilities  and 
demands  .set  forth  in  his  schedule;,  or  which  were  or  might 
have  been  proved  against  his  estate  in  insolvency,  and  may  be 
pleaded  by  a  simple  averment,  that  on  the  day  of  its  date  such 
discharge  was  granted  to  him,  setting  forth  the  same  in  full, 
and  the  same  shall  be  a  complete  bar  to  all  suits  brought  on 


Chap.  44] 


California. 


145 


any  such  debts,  claims,  liabilities,  or  demands,  and  the  certifi- 
cate shall  be  imnut  facie  evidence  in  favor  of  such  fact,  and  of 
the  regularity  of  such  discharge;  provided,  however,  that  any 
creditor  of  said  debtor,  whose  debt  was  proved,  or  provable, 
against  the  estate  in  insolvency,  who  shall  see  fit  to  contest  the 
validity  of  such  discharge  on  the  ground  that  it  was  fraudu- 
lently obtained,  and  who  has  discovered  the  facts  constituting 
the  fraud  subsetjuent  to  the  discharge,  may,  at  any  time  within 
two  years  after  the  date  thereof,  apply  to  the  Court  which 
granted  it,  to  set  aside  and  annul  the  same,  or  if  the  same  shall 
have  been  pleaded,  the  effect  thereof  may  be  avoided  collater- 
ally upon  any  such  ground. 

Sec.  54.  The  refusal  of  a  discharge  to  the  debtor  shall  not 
affect  the  administration  and  distribution  of  his  estate  under 
the  provisions  of  this  act. 


' 


full, 
on 


Fraudulent  Preferences  and  Transfers. 

Se(!.  55.  If  any  person  being  insolvent,  or  in  contempla- 
tion of  insolvency,  within  one  month  before  the  filing  of  a 
petition  by  or  against  him,  with  a  view  to  give  a  preference 
to  any  creditor  or  person  having  a  claim  against  him,  or  who 
is  under  any  liability  for  him,  procures  any  part  of  his  property 
to  be  attached,  sequestered,  or  seized  on  execution,  or  makes  any 
payment,  assignment,  transfer,  or  conveyance  of  any  part  of  his 
property,  either  directly  or  indirectly,  absolutely  or  condition- 
ally, the  person  receiving  such  payment,  pledge,  assignment, 
transfer,  or  conveyance,  or  to  be  benefited  thereby,  or  by  such 
attachment  or  seizure,  having  reasonable  cause  to  believe  that 
such  person  is  insolvent,  and  that  such  attachment,  seizure,  pay- 
ment, pledge,  conveyance,  transfer,  or  assignment  is  made  with 
a  view  to  prevent  his  property  from  coming  to  his  assignee  in 
insolvency,  or  to  prevent  the  same  frona  being  distributed  rat- 
ably among  his  creditors,  or  to  defeat  the  object  of,  or  in  any 
way  hinder,  impede,  or  delay  the  operation  of,  or  to  evade  any 
of  the  provisions  of  this  Act,  such  transfer,  payment,  convey- 


^1 


kCi 


14G 


California. 


[Part  3 


ml 
Pit,, 


ance,  pledge,  or  assignment  is  void,  and  the  assignee  may 
recover  the  property,  or  the  value  thereof,  as  assets  of  such 
insolvent  debtor;  and  if  such  sale,  assignment,  tranfer,  or  con- 
veyance is  not  made  in  the  usual  and  ordinary  course  of  busi- 
ness of  the  debtor,  that  fact  shall  be  p/'twia  facie  evidence  of 
fraud. 

Penal  Glauses. 


fil: 


I  t 


■  ••  & 


Sec.  56.  From  and  after  the  taking  eftect  of  this  Act,  if 
any  debtor  or  insolvent  shall,  after  the  commencement  of  pro- 
ceedings in  insolvency,  secrete  or  conceal  any  property  belong- 
ing to  his  estate,  or  part  with,  conceal,  or  destroy,  alter,  muti- 
late, or  falsif}',  or  cause  to  be  concealed,  destroyed,  altered, 
mutilated,  or  falsified,  any  book,  deed,  document,  or  writing 
relating  thereto,  or  remove  or  cause  to  be  removed,  the  sana- 
or  any  part  thereof,  with  intent  to  prevent  it  from  coming 
into  the  po.s.session  of  the  assignee  in  insolvency,  or  to  hinder, 
impede,  or  delay  his  assignee  in  recovering  or  receiving  the 
same,  or  make  any  payment,  gift,  sale,  assignment,  transfer,  oi 
conveyance  of  any  property  belonging  to  his  estate,  with  like 
intent,  or  shall  spend  any  part  thereof  in  gaming;  or  shall. 
with  intent  to  defraud,  willfully  and  fraudulently  conceal 
from  his  assignee,  or  fraudulently  or  designedly  omit  from  his 
schedule  any  property  or  effects  whatsoever;  or  if,  in  case  of 
any  person  having  to  his  knowledge  or  belief  provetl  a  false 
or  fictitious  debt  against  his  estate,  he  .shall  fail  to  disclo.se  the 
same  to  his  assignee  within  one  month  after  coining  to  the 
knowledge  or  belief  thereof;  or  .shall  attempt  to  account  for 
any  of  his  property  by  fictitious  losses  or  expenses;  or  shall, 
within  three  months  before  the  conuiiencement  of  proceedings 
in  insolvenc}',  under  the  false  preten.se  of  carrying  on  business 
and  dealing  in  the  ordinary  course  of  trade,  obtain  on  credit 
from  any  person  any  goods  or  chattels,  with  intent  to  deframl: 
or  shall,  with  intent  to  defraud  his  creditors,  within  thrcr 
months   next   before   the   conunencement  of    proceedings    in 


Ohap.    '  ^] 


Calik»rnu. 


147 


insolvency,  pawn,  pledge,  or  dispose  of,  otherwise  than  by  bona 
fide  transactions  in  the  ordinary  way  of  his  trade,  any  of  his 
goods  or  chattels,  which  have  been  obtained  on  credit  and 
remain  unpaid  for,  he  shall  be  deemed  guilty  of  misdemeanor, 
and,  upon  conviction  thereof,  shall  be  punished  by  imprison- 
ment in  the  County  Jail  for  not  less  than  three  months  nor 
more  than  two  years. 


Miscellaneous. 

Sec.  57.  Decfh  of  <lphtor. — If  any  debtor  shall  die  after 
the  order  of  adjudication,  the  proceedings  shall  be  continued 
and  concluded  in  like  manner,  and  with  like  validity  and  effect 
rts  if  he  had  lived. 

Sec.  38.  Statute  of  Limitations. — Pending  proceedings  by 
or  against  any  person,  copartner,  or  corporation,  no  statute  of 
limitations  of  this  State  shall  run  against  a  claim  which  hi  its 
nature  is  provable  against  the  estate  of  the  debtor. 

Sec;.  59.  Representation  hy  attoi-ney-  Any  creditor,  at 
any  stage  in  the  proceedings,  may  be  represented  by  his  attor- 
ney or  duly  authorized  agent. 

Sec.  60.  Exemptions. — It  shall  be  the  duty  of  the  Court 
liaving  jurisdiction  of  the  proceedings  to  exempt  and  set  apart 
for  the  use  and  benetit  of  said  insolvent,  such  real  and  personal 
property  as  is  by  law  exempt  from  execution;  and  also  a  home- 
stead in  the  manner  as  provided  in  section  one  thousand  four 
hundred  and  sixty-five  of  the  Code  of  Civil  Procedure. 

Sec.  (51.  (Jommencement  of  Proceedings. — The  filing  of 
the  petition  by  or  against  a  debtor  upon  which  an  order  of 
adjudication  in  insolvency  may  be  made  by  the  Court,  shall  be 
deemed  to  be  the  commencement  of  proceedings  in  insolvency 
under  this  Act. 

Sec;.  G2.  Certain  words  defined. — Words  used  in  this  Act 
in  the  singular  include  the  plural,  and  in  the  plural  the  singu- 


:il 


14b 


California. 


[Part  3 


I: 


t^s 


lar,  and  the  word  "debtor"  includes  partnerships  and  corpor- 
ations. 

Sec.  63.  Aiypolntment  of  Receiver. — A  receiver  may  bo 
appointed  by  the  Court  in  which  an  insolvent  proceeding  is 
pending  before  the  election  of  an  assignee: 

1.  Upon  the  application  of  creditors  where  it  is  shown 
that  the  property,  or  any  portion  thereof,  is  in  danger  of  being 
lost,  removed,  or  materially  injured. 

2.  In  all  other  cases  where  receivers  are  appointed  by  the 
usages  of  Courts  of  ecjuity.  And  thereupon  the  appointment, 
oath,  undertaking,  and  powers  of  such  receiver  shall,  in  all 
respects,  be  regulated  by  the  general  laws  of  the  State  applic- 
able to  receivers. 

Sec.  64.  Application  of  Code  of  Civil  Procedure. — All 
sections  of  the  Code  of  Civil  Procedure  of  the  State  of  Califor- 
nia relating  to  contempts  are  hereby  made  applicable  to  all 
proceedings  under  this  Act.  An  appeal  shall  be  allowed  to 
the  Supreme  Court  from  any  order  adjudging  any  person 
guilty  of  contempt  of  Court. 


Sec.  65.  Attachment  cosIh. — When  an  attachment  hasbtun 
made  and  is  not  dissolved  before  the  connnencement  of  pro- 
ceedings in  insolvency,  or  is  dissolved  by  an  undertaking  given 
by  the  defendant,  if  the  claim  upon  which  the  attachment-suit 
was  commenced  is  proved  against  the  estate  of  the  debtor,  the 
plaintiff  may  prove  the  legal  costs  and  disbursements  of  the 
suit,  and  of  the  keeping  of  the  property,  and  the  amount  there- 
of shall  be  a  preferred  debt.  In  all  contested  matters  in 
insolvency  the  Court  may,  in  its  discretion,  award  costs  to 
either  party,  to  be  paid  by  the  other,  or  to  either  or  both  par- 
ties, to  be  paid  out  of  the  estate,  as  justice  and  equity  may 
require;  in  awarding  costs,  the  Court  may  issue  execution 
therefor.  In  all  involuntary  cases  under  this  Act,  the  Court 
shall  allow  the  petitioning  creditors  out  of  the  estate  of  the 


Chap.  44] 


California. 


149 


debtor,  if  any  adjudication  of  insolvency  ho  made,  as  preferred 
claim,  all  legal  costs  and  disbursements  incurred  by  them  in 
that  behalf. 

Sec.  66.  When  Court  may  dhniim  petition. — The  Court 
may,  upon  the  application  of  the  debtor,  if  it  be  a  voluntary 
petition,  or  of  the  petitioning  creditors,  if  a  creditor's  petition, 
dismiss  the  petition  and  discontinue  the  proceedings  at  any 
time  before  the  appointment  of  as.signee;  after  the  appoint- 
ment of  assignee,  no  dismi.ssal  shall  be  made  without  the  con- 
.sent  of  all  parties  interested  in  or  affected  thereby. 

Sec.  67.  Ajrpeals. — An  appeal  may  be  taken  to  the 
Supremo  Court  in  the  following  cases: 

1.  From  an  order  granting  or  refu.sing  an  adjudication  of 
insolvency. 

2.  Allowing  or  rejecting  a  creditor's  claim,  in  whole  or  in 
part. 

•i.     Overruling  a  motion  for  a  new  trial. 

4.  Settling  an  account  of  an  assignee. 

5.  Against  or  in  favor  of  setting  apart  homestead  or  other 
property  claimed  as  exempt  from  execution. 

(j.     Granting  cr  refusing  a  discharge  to  the  debtor. 

The  notice,  undertaking  and  procedure  on  appeal  .shall  con- 
form to  the  general  laws  of  this  State  regulating  appeals  in 
civil  ca.ses,  except  that  when  the  assignee  has  gi  "en  an  official 
undertaking  and  appeal  from  a  judgment  or  order  in  insolv- 
ency, his  official  undertaking  stands  in  the  place  of  an  under- 
taking on  appeal,  and  the  sureties  therein  arc  liable  on  .such 
undertaking. 

» 

Sec.  68.  Gonjiicting  Acts  repealed. — All  Acts  and  parts  of 
Acts  in  conflict  with  the  provisions  of  this  Act  are  hereby  re- 
pealed; j>rovlded,  however,  that  such  repeal  shall  in  no  man- 
ner invalidate  or  affect  any  case  in  insolvency  in.stituted  and 
pending  in  any  Court  prior  to  the  day  when  this  Act  shall 
take  effect 


4 


150 


California. 


[Part  3 


CHAPTER  XLV. 


LEGAL  HOLIDAYS. 


11 
i 


Every  Sunday,  first  day  of  January,  twenty-second  day  of 
February,  thirlieth  day  of  May,  fourtli  day  of  July,  ninth  day 
of  September,  twenty-fifth  day  of  December,  and  every  day  on 
which  an  election  is  held  throughout  the  State,  and  every  day 
appointed  by  the  President  of  the  United  States,  or  bj'  the 
Governor  of  the  State  for  a  public  fast,  thanksgiving  or 
holiday. 

If  the  first  of  January,  twenty-second  of  February,  thirtieth 
of  May,  fourth  of  July,  ninth  of  September,  or  twenty-fifth  of 
December,  fall  upon  a  Sunday,  the  Monday  following  is  a 
holidav. 


Chap.  1] 


Nevada. 


l.-)l 


PAET  IV. 


State  of  Nevada. 


•  H4 


Prepared  Expressly  for  this  Work  by  J,  W.  Whitcher, 
Attorney,  Virginia  City,  Nevada. 


CHAPTER  I. 

COURTS,  JURISDICTION,  AND  TERMS  OF 

COURTS. 

United  States  Courts. 

Terms  of  U.  S.  Circuit  Court. — At  Carson  City,  thinl  Mon- 
day in  March.and  // j'.s<  Monday  in  Novenilx-r  of  each  year. 

TertiiH  of  U.  S.  District  Cmrt. — At  Carson  City,  first  Mon- 
itay.s  in  February,  May  and    )ctober. 

(For  the  jurisdiction  of  the  l^nitc<l  States  Courts,  .see 
Part  II.) 

State  Courts. 

The  Supreme  Court  consists  ni  three  Judges. 

Regular  Tenns. — First  Mondays  of  January,  April,  July 
and  October. 

The  Supreme  Court  shall  have  appellate  juri.sdiction  in  all 
cases  in  equity;  also  in  all  cases  at  law  in  which  is  involved 
the  title  or  right  of  possession  to,  or  the  po.sses,sion  of  real 
e.state  or  niimng  claims,  or  the  legality  of  any  tax,  impost, 
asses-sment,  toll,  or  numicipal  fine,  or  in  whinh  tlw  Jemaml 
(exclusive  of  interest),  or  the  va'ue  of  the  pr'^)p«rty  in  'ontro- 


^^ 


152 


Nevada. 


[Part  4 


■y 


n 


vi'i-jjy,  exceeds  three  hundred  dollars;  also  in  all  other  civil 
cases  not  included  in  the  ^'eneral  subdivision  of  law  and  e(|uit3', 
and  also  on  questions  of  law  alone,  in  all  criminal  cases  in 
which  the  offense  charj^cd  amounts  to  felony.  The  Court 
.shall  also  have  power  to  issue  writs  of  mandamus,  certiorari, 
prohibition,  ((uo  warranto  an<l  habeas  corpus,  and  also  all  writs 
necessary  or  proper  to  the  complete  exercise  of  its  appellate 
jurisdiction.  Kach  of  the  Ju.stices  .shall  have  power  to  i.ssue 
writs  of  habeas  corpus  to  any  pai't  of  the  State,  upon  petition 
by,  or  on  belialf  of,  any  person  held  in  actual  custody,  and  may 
make  such  writs  returnable  before  himself  or  the  Supreme 
Court,  or  before  any  District  Court  in  this  State,  or  before  any 
Judjre  of  said  Courts. 

District  Courts. 

Jurmlietuni. — The  District  Courts  in  the  several  judicial 
districts  of  this  State  .shall  have  or'jjfinal  jurisdiction  in  all 
cases  in  e(|uity;  also  in  all  cases  at  law  which  involve  the  title 
or  the  rijj^ht  of  po.s.session  to,  or  the  pos.session  of,  real  property 
or  mininj^  claims,  nr  the  lejjjality  of  any  tax,  impost,  as.se.ss- 
ment,  toll,  or  nuuiici])al  tine,  hiuI  in  all  other  cases  in  which  the 
demand  (exclusive  of  interest),  or  the  value  of  the  prop(;rty  in 
controversv,  exceeds  three  hundred  dollars;  also  in  all  ca.v  . 
relating;  to  the  estate  of  deceased  persons,  and  the  persons  and 
estates  of  minors  and  insane  persons,  and  of  the  action  of  forc- 
ible entry  and  unlawful  detainer;  and  also  in  all  crimimil  cases 
not  otherwise  provided  for  by  law.  They  shall  »lso  have  final 
appellate  ju-isd'ction  in  cases  arisinj.;  in  Justices'  Courts,  and 
such  other  inferior  tribunals  as  may  be  established  b}^  law. 
The  District  ('oin-ts,  and  the  JudL,'es  thereof,  shall  have  power 
to  issue  writs  of  mandamus,  injunction,  (|U<»  wairanto,  certiorari, 
and  all  other  writs  pr«)per  and  necessary  to  the  complete 
exercisr  of  their  jurisdiction;  and  also  have  power  to  issue 
writs  of  habeas  corpus,  on  petition  by,  or  on  behalf  of,  any 
person  helrl  in  oiistody  in  their  res[>ective  districts. 

Times  for  Holding  District  Oourts. 
Tlie  Di.Htrlc'i  jUoyH  |s  always  open, 


Chap   1] 


Nevada. 


Justices'  Courts. 


US 


Justices  of  the  Peace  have  juri.siliction  in  all  civil  cases 
when  the  demand  (exclusive  of  interest)  does  ni)t  exceed  three 
hundred  dollars.     Are  alway.s  open. 


CHAPTER  II. 

TIME  ALLOWED  TO  ANSWER  —  SERVICE  BY 
PUBUCATION— PLACE  OF  TRIAL. 

Defendant  has  ten  day.s  to  answor  sununons,  exclusive  of 
day  of  service,  from  date  of  service,  when  served  within  the 
county;  twenty  days  when  served  in  the  district  but  in  another 
countj'  than  the  one  where  the  action  was  connnenced;  and  in 
all  other  cases  forty  days,  when  personal  service  is  had. 

?lace  of  Trial. 

All  actions  pertaininjj  to  r(!al  estate,  or  to  the  recovery 
thereof,  or  anv  interest  thereiii,  nmst  Vte  connnenced  in  the 
county  wherein  the  real  estate  is  situated.  Transitory  actions 
follow  the  person. 

Provisions  in  Justices'  Courts. 

Defendant  must  he  sucmI  in  the  township  in  which  he  lives, 
unless  he  is  .served  with  summons  in  the  county-.seat,  or  has 
contracted  to  perform  an  oblij^ation  at  a  particular  place;  in 
which  case  he  may  be  sued  in  the  township,  city,  or  precinct 
where  such  obli<;ation  is  to  be  performed,  or  in  the  township 
in  which  he  resides. 


CHAPTER  III. 

LIMITATION  OF  ACTIONS. 

Civil  actions,  except  for   recovery   of   real  property,   can 
onlv  b(.!  connnenced  a.s  follows: 


lo4 


Nevada. 


[Part  4 


■}% 


Within  Six  Years. — 1.  Upon  a  judgment  or  decree  of  any 
Court  of  the  United  States,  or  of  any  State  or  Territory,  within 
the  United  States. 

2.  Upon  a  contract,  obligation,  or  liability  founded  upon 
a  written  instrument. 

Within  Four  Yearn. — 1.  An  action  on  an  open  account 
for  goods,  wares,  and  merchandise  sold  and  delivered. 

2.  An  action  for  any  article  charged  in  a  store  account, 
time  to  date  from  date  of  last  charge,  or  date  of  last  credit. 

3.  An  action  upon  a  contract,  obligation,  or  liability,  not 
founded  upon  an  instrument  in  writing. 

Within  Three  Yearn. — Upon  a  liability  created  by  statute, 
other  than  a  penalty  or  forfeiture;  for  trespass  upon  real  prop- 
erty; for  taking,  detaining,  or  injuring  any  goods  or  chattels; 
including  actions  for  the  specific  recovery  of  per.sonal  property; 
for  relief  on  the  ground  of  fraud — the  cause  of  action  not 
clecmed  to  have  accrued  until  discovery  by  party  aggrieved  of 
facts  constituting  a  fraud. 

Within  Tico  Years. — Against  a  Sheriff,  Coronor,  or  Con- 
stable, upon  the  liability  incurred  by  the  <l()ing  of  an  act  in 
his  official  capacity  and  in  virtue  of  his  office,  or  an  omission  of 
an  official  duty,  including  n(,n-paymcnt  of  money  collected 
upon  execution.  Upon  statute  for  a  penalty  or  forfeiture 
where  the  action  is  given  to  an  individual,  or  to  an  individual 
and  the  State,  except  when  the  statute  imposing  it  fixvs  a 
dirterent  limitation.  For  libel,  slander,  as.sault,  battery,  or  false 
imprisonment.  Upon  statute  for  forfeiture  or  penalty  to  the 
State.  Against  a  Sheriff  or  other  officer,  for  escape  of  a 
prisoner  arre.sted  or  imprisoned  on  civil  process.  In  case  of 
mutual  accouiits,  the  statute  begins  to  run  from  date  of  last 
item  char<'ed  or  the  last  crt'lit  <dven. 

In  all  other  cases,  within  four  years  after  cause  of  action 
accrued. 

Contracts  entered  into  prior  to  March  2,  bs77,  are  controllfcl 
by  the  provisions  of  the  Act  of  !^<17,  uhieh  provides  tiinfc 
actions  must  be  coin'nenced: 


Chap.  3] 


Nevada. 


155 


Within  Five  Years. — Upon  a  judgment  or  decree  of  any 
Court  of  the  United  States,  or  of  any  State  or  Territory 
within  the  United  States. 

Within  Four  Yearn. — Upon  any  contract,  obligation,  or 
liability,  founded  upon  an  instrument  in  writing. 

Within  Three  Yearn. — As  above  stated. 

Within  Two  Years. — As  above,  and  actions  on  an  open 
account  for  goods,  wares  and  merchandise  sold  and  delivcied. 
Also  an  action  for  any  article  charged  in  a  store  account. 

General  Provisions. 

An  action  upon  a  judgment,  contract,  obligation,  or  liability, 
for  the  payment  of  money  or  damages  obtained,  made,  executed 
or  issued  out  of  the  State,  can  only  be  connnenced  as  follows: 

1.  Within  one  year,  when  prior  to  the  passage  of  the  Act 
(March  5,  18G7)  more  than  two  and  less  than  five  years  have 
elapsed  since  the  cause  of  action  accrued. 

2.  Within  six  months,  when  prior  to  the  passage  of  the 
Act,  more  than  five  years  have  elapsed  since  the  cause  of  action 
accrued. 

3.  Within  two  years,  in  all  other  cases,  after  the  cause  of 
action  accrued;  a  riglit  of  action  shall  be  deemed  to  have 
accrued  on  a  jutlgment  at  the  time  of  its  rendition. 

When  the  cause  of  action  has  arisen  in  any  other  State  ov 
Territory  of  the  United  States,  or  in  a  foreign  country,  antl 
by  the  laws  thereof  an  action  cannot  be  maintained  against  a 
person  by  reason  of  the  lapse  of  time,  no  action  thereon  shall 
be  maintained  against  liim  in  this  State. 

No  acknowledgment  or  new  promise  shall  take  the  case 
out  of  the  statute,  ('Xce])t  it  bo  in  vuiting,  sigtied  by  the  party 
to  be  charged. 

Actions  for  recovery  of  possession  of  real  estate  must  be 
coiujiu'iiced  withiti  five  ya&rs,  except  actions  for  the  recovery  .»f 
mining  ground,  which  must  be  commenced  within  two  years 
I'rom  time  cause  of  action  accrued. 


156 


Nevada. 


[Part  4 


m 


CHAPTER  IV. 

ATTACHMENTS. 

Writs  of  attachment  may  be  issued  with  summons,  or  at 
any  time  afterward: 

1.  In  an  action  upon  a  contract  for  the  direct  payment  of 
money,  made,  or  by  the  terms  thereof,  payable  in  this  State, 
which  is  not  secured  by  mortgage,  lieii,  or  pledge  upon  real  or 
personal  property,  situated  or  being  in  the  State;  if  so  secured, 
when  such  security  has  been  rendered  nugatory  by  the  act  of 
the  defendant. 

2.  In  an  action  upon  a  contract  against  a  defendant  not 
residing  in  tliis  State. 

Writ  to  be  issued  upon  filing  of  an  affidavit  to  be  made  bj' 
plaintiff',  or  some  one  on  his  behalf,  setting  forth  the  statutory 
grounds  for  issuance  of  the  writ. 

Plaintiff' must  give  bond  to  secure  defendant  against  damage 
arising  from  the  issuance  of  the  writ,  in  case  the  attachment  is 
dismissed,  or  the  defendant  recover  in  the  action. 

Real  and  personal  property,  debts  and  credits,  stocks  or 
shares  in  any  corporation,  may  be  attached  in  the  manner 
pointed  out  by  the  statute. 


CHAPTER  V. 
ARREST  IN  CIVIL  ACTIONS. 

The  defendant  may  be  arre.sted  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of  money  or  damages,  on 
a  cause  of  action  arising  upon  contract,  express  or  implied, 
when  the  defendant  is  about  to  depart  from  the  State  with 
intent  to  defraud  his  creditors,  or  when  the  action  is  for  libel 
or  slander. 

2.  In  an  action  for  a  line  or  penalty,  or  for  money  or 
property  embezzled,  or  frauilulentl}-  misapplied  or  converted 


Chap.  5] 


Nevada. 


l.'>7 


to  his  own  use  Ity  a  public  othcer,  or  au  ofHcci-  of  a  corporatiini 
or  an  attorney,  factor,  broker,  ufjent,  or  clerk,  in  the  coursi'  df 
his  employment  as  sucli,  or  by  any  other  perstm  in  a  fiilucinry 
capacity,  or  for  nii.sconduct  or  neglect  in  office,  or  in  professional 
employment,  or  for  wilful  violation  of  dut}'. 

3.  In  an  action  to  recover  the  possession  of  personal 
property  unjustly  detained,  when  the  property  or  any  part 
thereof  has  been  concealed,  removed,  or  disposed  of,  so  that  it 
cannot  be  found  or  taken  by  the  Sherifi". 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in 
contracting  the  debt,  or  incurring  the  obligati(m  for  which  the 
action  is  brought,  or  in  concealing  or  disposing  of  the  property, 
for  the  ttiking,  detention,  or  conversion  of  which  the  action  is 
brouglit. 

5.  When  the  defendant  has  removed  or  disposed  of  his 
property,  or  is  about  to  do  so,  with  intent  to  defraud  his 
creditors. 

The  order  of  arrest  is  only  issued  upon  tiling  an  affi<lavit 
anci  bond  as  required  by  statute — bontl  to  be  for  a  sum  not 
less  than  four  hundreil  dollars. 


CHAPTER  VI. 

JUDGMENTS  AND  JUDGMENT  LIENS. 

From  time  judgment  is  docketed  it  becomes  a  lien  upon  all 
real  property  of  the  judgment  tlebtor,  not  e.vempted  from  exe- 
cution in  the  county,  owned  by  him  at  the  time,  or  which  he 
tnay  afterward  accpiire,  until  the  lien  expires.  Lien  of  judg- 
ment eontiiuu's  for  two  years,  unless  tlie  judgment  be  previously 
satisfied.  Personal  property,  not  exempt  from  execution,  is 
only  held  for  satisfaction  of  judgment  after  levy  of  execution 
thereon. 


m 


158 


Nevada. 


[Part  4 


CHAPTER  VII. 

EXECUTIONS,  EXEMPTIONS,  SALE  AND 
REDEMPTION. 

Execution  may  issue  for  the  enforcement  of  a  judgment 
at  time  within  five  years  after  the  entry  thereof,  and  may  he 
issued  to  the  Sherift'  of  any  county  in  the  State  in  proper  cases. 


Exemptione. 

The  foHowin^'  property  of  tlic  judgment  debtor  is  exempt 
from  execution: 

1.  Chairs,  tables,  desks,  and  books  to  the  vahie  of  $100. 

2.  Neciisary  liousehold  furniture,  wearing  apparel,  beds, 
bedding,  provisions,  and  firewood  .sufficient  for  one  month. 

.*}.  Farming  utensils;  also,  two  oxen,  or  two  horse.s,  or  two 
mules,  and  their  harness;  two  cows,  one  cart  or  wagon;  and 
food  for  such  oxen,  horses,  cows  or  mules  for  one  month;  also 
all  seed -grain,  or  vegetables  actually  provided,  reserved,  or 
on  hand  for  the  purpose  of  planting  or  sowing,  at  any  time 
within  the  ensuing  six   months,  not  exceeding  in  value  S200. 

4.  The  tools  and  implements  of  a  mechanic  or  artisan 
necessary  to  carj-y  on  his  tra<le;  the  instruments  and  chests  of 
a  surgeon,  physician,  surveyor  and  dentist,  necessary  to  the 
exerci.se  of  their  profession,  with  their  scientific  and  profes- 
sional libraries,  and  the  law  libraries  of  an  attorney  or  coun.selor, 
and  the  libraries  of  ministers  of  the  gospel. 

o.  The  cabin  or  dwelling  of  a  miner,  not  exceeding  in 
value  S'jOO;  also,  all  tools  and  implements  necessary  for  carry- 
ing on  any  mining  operation,  not  exceeding  in  value  .^')()0; 
and  two  horses,  mules,  or  oxen,  with  their  harnesses,  and  food 
for  the  same  for  one  month,  when  necessary  to  be  u.sed  in  such 
mining  operations. 


Chap.  7] 


Nevada. 


1.-)!) 


6.  Two  oxen,  two  horses,  or  two  inulcs,  and  tlieir  liarnoss, 
and  one  cart  or  wagon,  by  the  use  of  which  a  cartinan,  liuck- 
ster,  peddler,  teamster,  or  other  hihorer,  habitually  earns  liis 
living;  and  one  horse,  with  vehicle  and  harness,  or  other  e(|uip- 
nients  used  by  a  physician  or  surgeon,  or  minister  of  the  gos- 
pel, in  niaking  his  professional  visits,  and  food  for  such  oxen, 
mules  or  horses  for  one  month. 

7.  One  sewing  machine,  not  exceeding  in  value  ^150.  in 
actual  use  by  the  ilebtor  or  his  family. 

H.  All  tire-engines,  hooks  and  ladders,  and  all  aj)paratus 
and  furniture  belonging  to  any  tire  company  or  department. 

9.  All  arms,  uniforuis  and  accoutrements  re(|uired  by  law 
to  be  kept  by  any  person. 

10.  All  court-houses,  jails  public  offices  and  buildings, 
lots,  grounds,  and  personal  property;  the  fixtures,  furniture, 
books,  papers  ami  appurtenances  belonging  and  pertaining  to 
the  court-house,  jail  and  public  offices  belonging  to  any  county 
in  this  State;  and  all  cemeteries,  public  .s<|uares,  parks  and 
places,  public  buildings,  town  halls,  public  markets,  buildings 
for  the  use  of  the  tire  ilepartment  and  military  organizations, 
an<l  the  lots  and  grounds  thereto  belonging  and  appertaining, 
owned  or  held  by  any  town  or  incorporative  city,  or  d(;dicated 
by  .such  town  or  city  to  health,  ornament,  or  public  ise,  or  for 
the  use  of  any  tire  or  military  conipany  organized  under  the 
laws  of  this  State. 

11.  None  of  the  above  articles  or  species  of  property  arc 
exempt  from  execution  issued  upon  a  judgment  recovered  for 
its  price,  or  upon  a  mortgaf,e  therijon. 

12.  The  earnings  of  a  judgment  debtor  ari.sing  froni  his 
personal  services  for  the  thirty  days  next  preceding  the  mak- 
ing of  the  oriler  l)y  the  Judge  or  Justice,  to  the  extent  of  fiftj' 
•  lollars,  are  exempt,  when  it  shall  be  made  to  appear  by  the 
debtor's  affiilavit,  or  otherwi.se.  that  such  e"rnings  are  neces- 
sary for  his  own  support  or  the  use  of  a  family,  supporU'd 
wholly  or  partially  by  his  labor. 

The  fees  and  salaries  of  persons  holding  offices  or  positions 
of  profit  under  the  government  of  this  State  shall  be  .subject 


it 


160 


Nevada. 


[Part  4 


to  attachment  or  execution  for  all  debts  or   liabilities  created 
(Jurinij  their  term  of  office. 

For  homestead  exemption,  see  "Homesteads." 

Sale. 

Real  property  may  be  sold  upon  twenty  days'  notice,  given 
as  re(juired  l)y  law;  and  personal  property  after  tive  day's 
notice  of  the  time  and  place  of  sale,  as  required  by  law. 

Redemption. 

Real  estate  sold  upon  execution  or  order  of  sale  upon  mort- 
gage, tax  .sale  or  otherwise,  may  be  redeemed  by  the  judgment 
debtor,  or  his  successors  in  interest  in  the  whole  or  any  part 
of  the  property,  or  by  a  creditor  having  a  lien  by  judgment  or 
mortgage  upon  the  property  sold,  or  .some  share  or  part  there- 
of .subsequent  to  that  upon  which  the  property  was  sold,  with- 
in six  months  from  the  date  of  sale.  By  Act  of  1879,  redemp- 
tion from  tax  sale  is  allowed  for  six  months  from  time  of  sale. 
Personal  property,  sold  upon  execution,  is  not  subject  to 
redemption. 


CHAPTER  VIII. 

PROCEEDINGS  SUPPLEMENTARY  TO 
EXECUTION. 

Upon  return  of  execution  unsati.sfied,  in  whole  or  in  part, 
i  «sued  upon  any  judgment,  the  defendant  may  be  required  to 
appear  before  the  Court  and  answer  under  oath  concerning  his 
property. 


CHAPTER  IX. 

SECURITY  FOR  COSTS. 

When  plaintiff  is  a  non-resident,  or  is  a  foreign  corporation, 
security  for  costs  may  be  refjuired. 


Chap.  10] 


Nevada. 


IGl 


CHAPTER  X. 

APPEALS. 

An  appeal  from  a  judgment  rendered  in  a  Justices'  Court 
may  bo  taken  to  the  District  Court  witliin  thirty  days  after 
entry  of  judgment  upon  filing  a  bond  with  two  sufiicient  sure- 
ties for  double  the  amount  of  judgment  and  costs,  in  case  stay 
of  execution  is  demanded . 

An  appeal  may  be  taken  from  the  District  to  the  Supreme 
Court: 

1.  From  a  final  judgment  in  action  or  special  proceeding 
commenced  in  the  Court  in  which  the  judgment  is  rendered, 
within  one  year  after  the  rendition  of  judgment. 

2.  From  an  order  granting  or  refusing  a  new  trial,  froiji 
an  order  granting  or  dissolving  an  injunction,  and  from  an 
order  refusing  to  grant  or  dissolve  an  injunction,  and  from  any 
special  order  made  after  the  final  judgment,  within  si.xty  ilays 
after  the  order  is  made  and  entered  in  the  minutes  of  the 
Court. 

3.  From  an  interlocutory  judgment  or  order  in  case  of 
partition  which  determines  the  rights  of  the  several  parties, 
and  ilirects  partition,  sale,  or  division  to  be  made,  within  sixty 
days  after  the  rendition  of  the  same. 

In  all  cases  of  appeal  to  the  Supreme  Court,  a  bond  must 
be  filed  in  the  sum  of  $300  for  payment  of  costs  of  appeal , 
and  in  case  a  stay  of  execution  is  demanded,  then  an  addition 
al  bond  must  be  filed  in  a  sum  for  double  the  amount  of  the 
judgment  and  costs.  Bonds  to  be  given  by  appellant,  and  to 
be  executed  by  two  or  more  sureties. 


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Nevada. 


[Part  4 


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CHAPTER  XI. 
ESTATES  OF  DECEASED  PERSONS. 

Claims  against  estates  of  deceased  persons  must  be  pre- 
sented proved  and  allowed  within  ten  moiiths  after  the  first 
publication  of  administrator's  or  executor's  notice  to  creditors, 
excepting  claims  of  persons  who  are  non-residents  of  the  State, 
who  have  not  had  actual  notice;  they  may  present  their  claims 
at  any  time  before  distribution  of  estate.  But  when  the  value 
of  the  estate  does  not  exceed  $2000,  the  Court  may  shorten 
the  time  for  ci-editors  to  file  their  claims,  and  if  the  value  of  the 
estate  does  not  exceed  ^500,  the  Court  may  order  it  assigned  to 
the  widow  and  children.  Claims  may  be  verified  by  residents 
before  any  officer  authorized  to  administer  oaths  within  the 
State.  An  affidavit  taken  before  a  Justice  of  the  Peace  of  any 
other  county  in  the  State  except  the  one  where  the  administrator 
or  executor  reside,  must,  to  entitle  it  to  be  used  or  filed,  contain 
a  certificate  of  the  Clerk  of  the  county  where  such  Justice  lO- 
sides,  reciting  the  facts  that  said  Justice  is  duly  commissioned 
and  acting  as  such  Justice  of  the  Peace;  that  the  signature  of 
such  Justice  is  genuine,  and  that  full  faith  and  credit  are  due 
to  all  his  official  acts. 

Affidavits  to  correctness  of  accounts  and  claiins,  when  made 
out  of  the  State  of  Nevada,  must,  to  insure  their  reception,  be 
verified  before  some  Judge  of  a  Court  having  a  seal,  under  the 
seal  thereof;  or  a  Commissioner  of  Deeds,  duly  commissioned 
and  (jualified,  of  the  State  of  Nevada;  or  before  a  Notary  Pub- 
lic, whose  official  character  is  duly  certified  to  by  the  Secretary 
of  State  or  Territory  in  which  he  and  the  party  making  proof 
reside. 

Time  in  which  the  estate  must  be  settled  not  limited  bv 
statute;  it  is  subject  to  the  order  of  the  Court. 

District  Courts  have  sole  jurisdiction  of  all  original  proceed- 
ings in  probate  matters. 


Ghap.  12] 


Nevada. 


103 


CHAPTER  XII. 

HOMESTEADS. 

The  homestead  of  a  judgment  debtor,  consisting  of  a  quant- 
ity of  land,  together  with  the  dwelling-house  thereon,  and  its 
appurtenances,  not  exceeding  in  value  five  thousand  dollars, 
to  be  selected  by  husband  and  wife,  or  either  of  them,  or  other 
head  of  the  family,  is  exempt  from  forced  sale  on  execution  or 
other  process  from  any  Court. 

Homesteads  are  declared  as  follows: 

The  selection  to  be  made  by  either  the  husband  or  wife,  or 
both  of  them,  or  other  head  of  a  family,  declaring  their  inten- 
tion in  writing  to  claim  the  same  as  a  homestead.  The  same 
to  be  duly  acknowledged  and  recorded  as  conveyances  affect- 
ing real  estate. 

Declarations  of  intention  to  claim  and  hold  a  homestead 
may  be  made  at  any  time  prior  to  sale,  on  execution  or  other 
process,  excepting  on  sale  of  premises  on  foreclosure  of  mort- 
gage upon  the  premises  executed  by  husband  and  wife;  or 
where  the  judgment  is  for  the  purchase  price  of  the  property 
claimed  as  a  homestead.  This  exemption  does  not  extend  to 
any  mechanic's,  laborer's,  or  vendor's  lien  upon  the  premises. 

The  homestead  may  be  abandoned  by  a  declaration  in 
writing,  signed  and  acknowledged  by  husband  and  wife,  and 
recorded  in  the  ofKce  of  the  County  Recorder,  in  the  same 
manner  as  the  d3claration  to  claim  the  same  is  required  to  be 
acknowledged  and  recorded.  On  the  death  of  husband  or 
wife,  the  homestead  and  other  property  exempt  from  sale  on 
execution  is  required  to  be  set  apart  by  the  Court,  for  the 
benefit  of  the  surviving  husband  or  wife,  and  his  or  her  legiti- 
mate children. 

In  cases  where  homestead  property  is  appraised  at  a  sum 
exceeding  five  thousand  dollars,  the  same  may  be  sold,  and  the 
sum  realized  on  sale  in  excess  of  five  thousand  dollars  and 
costs  pass  to  judgment  creditor. 


164 


Nevada. 


[Part  i 


m 


CHAPTER  Xni. 


PI' 
Mr-'-' 


i   : 


OF  WITNESSES  AND  DEPOSITIONS. 

Parties  to  the  action  are  not  excluded  from  being  witnesses 
upon  the  ground  of  interest,  except: 

1.  That  no  party  to  an  action  or  proceeding  is  allowed  to 
testify  therei;i,  when  the  opposite  party  is  the  representative  of 
a  deceased  person,  when  the  facts  to  be  proved  transpired 
before  the  death  of  such  deceased  person. 

2.  Persons  convicted  of  felony,  unless  pardoned,  or  the 
judgment  is  reversed  on  appeal,  cannot  be  witnesses. 

3.  Attorneys  or  counseloi^s  cannot,  except  by  consent  of 
their  client,  be  examined  as  to  any  confidential  communications 
made  to  them  in  the  course  of  their  professional  employ inoiit, 
and  the  like  rule  applies  to  physicians,  surgeons,  clergymen  or 
priests,  with  respect  to  conlidential  communications  made  to 
them  in  their  professional  capacity. 

4.  Husband  or  wife  cannot  be  witnesses  for  or  against 
each  other  without  the  consent  of  each  other,  except  in  actions 
brought  by  one  against  the  other. 

5.  Public  officers  cannot  be  examined  as  witnesses  in 
reference  to  communicauons  made  to  them  in  official  confidence, 
when  the  public  interest  would,  by  such  disclosure,  be  injured. 

6.  Laws  relative  to  the  attestation  of  instruments  required 
to  be  attested  are  reserved  from  the  operation  of  the  statute 
allowing  parties  in  interebt  to  testify. 

Negroes  can  testify  in  all  cases  where  whites  are  permitted 
to  act  as  witnesses. 

The  testimony  of  a  witness  in  this  State  may  be  taken  in 
an  action  at  any  time  after  the  service  of  the  sununons,  or  the 
appearance  of  the  defendant;  and  in  a  special  proceeding,  after 
a  question  of  fact  has  arisen  therein,  in  the  following  cases: 

1.  When  the  witness  is  a  party  to  the  action  or  proceeding, 
or  a  person  for  whose  immediate  benefit  the  action  or  proceeding 
is  prosecuted  or  defended, 


P'J 


Chap.  13] 


Nevada. 


165 


2.  When  the  witness  resides  out  of  the  county  in  which 
his  testimony  is  to  be  used. 

3.  When  the  witness  is  about  to  leave  the  county  where 
the  action  is  to  be  tiicV  and  will  probably  continue  absent 
when  the  testimony  is  required. 

4.  When  the  witness,  otherwise  liable  to  attend  the  trial, 
is,  nevertheless,  too  infirm  to  attend;  or  resides  within  the 
county,  but  more  than  fifty  miles  from  the  place  of  trial. 

The  deposition  may  be  taken  before  any  Judge  or  Clerk  of 
a  Court,  or  any  Justice  of  the  Peace,  or  Notary  Public  in  this 
State,  on  serving  upon  the  adverse  party  previous  notice  of  the 
time  and  place  of  the  examination,  together  with  a  copy  of  an 
affidavit  showing  that  the  case  is  one  mentioned  as  above 
stated.  Such  notice  .shall  be  at  least  five  davs,  and  in  addition 
one  day  for  every  twenty-five  miles  of  the  distance  of  the  place 
of  examination  from  the  residence  of  the  person  upon  whom 
notice  is  served,  unless,  for  cause  shown,  a  Judge,  by  order, 
prescribe  a  .shorter  time.  Either  party  may  attend  such 
examination,  and  put  such  questions,  direct  and  cross,  as  may 
be  proper. 

The  deposition,  when  completed  and  corrected,  shall  be 
signed  by  the  witness,  and  sealed  and  directed  to  the  Clerk  of 
the  Court  in  which  the  action  is  pending,  or  to  such  person  as 
the  parties,  in  writing,  may  agree  upon,  and  either  delivered 
by  the  officer  taking  the  same  to  the  Clerk,  or  such  person,  or 
transmitted  through  the  mail  or  by  some  safe  private 
opportunity ;  and  such  deposition  may  be  used  bj'  either  party 
upon  the  trial  against  any  partj*  giving  or  receiving  such 
notice,  subject  to  all  legal  objections.  If  the  parties  attend  at 
the  examination,  no  objection  to  the  form  of  an  interrogatory 
shall  be  made  at  the  trial,  unless  the  same  was  stated  at  the 
time  of  the  examination. 

If  the  deposition  to  be  taken  be  by  the  reason  of  the  absence 
or  intended  absence  from  the  county  of  the  witness,  or  because 
he  is  too  infirm  to  attend,  proof,  by  affidavit  or  oral  testimony, 
shall  be  made  at  the  trial  that  the  witness  continues  absent  or 
infirm,  to  the  best  of  deponent's  knowledge  or  belief. 


166 


Nevada. 


[Part  4 


Depositions  thus  taken  may  be  also  read  in  case  of  the 
death  of  the  witness. 

When  a  deposition  has  been  once  taken,  it  nay  be  read  in 
anj'^  stage  of  the  same  action  or  proceeding  by  either  party, 
and  shall  then  be  deemed  the  evidence  of  the  party  reading  it. 


K 


I', 


!•'■ 


Depositions  taken  out  of  the  State. 

The  testimony  of  a  witness  out  of  the  State  may  be  taken 
by  deposition  in  an  action  at  any  time  after  the  service  of  the 
summons,  or  the  appearance  of  the  defendant;  and  in  a  special 
proceeding,  at  any  time  after  a  question  of  fact  has  arisen 
therein. 

The  deposition  of  a  witness  out  of  the  State  shall  be  taken 
upon  commission  issued  from  the  Court,  under  the  seal  of  the 
Court,  upon  an  order  of  the  Judge  or  Court,  on  the  application 
of  either  party,  upon  live  days'  previous  notice  to  the  other- 
It  shall  be  issued  to  a  person  agreed  upon  by  the  parties,  or  if 
they  do  not  agree,  to  any  Judge  or  Justice  of  the  Peace  selected 
by  the  officer  granting  the  commission,  or  to  a  Commissioner 
appointed  by  the  Governor  of  this  State  to  take  affidavits  and 
depositions  in  other  States  or  Territories. 

Such  proper  interrogatories,  direct  and  cross,  as  the  respect- 
ive parties  may  prepare  to  be  settled,  if  the  parties  disagree  as 
to  their  form,  by  the  Judge  or  officer  granting  the  order  for 
the  commission,  at  a  day  fixed  in  the  order,  or  at  the  time  of 
granting  the  order  for  connnission,  may  be  annexed  to  the  com- 
mission; or,  when  the  parties  agree  to  that  mode,  the  examin- 
ation may  be  without  written  interrogatories. 

The  commission  shall  authorize  the  Commissioner  to  admin- 
ister an  oath  to  the  witness,  and  to  take  his  deposition  in  an- 
swer to  the  interrogatories,  or  when  the  examination  is  to  be 
without  interrogatories  in  respect  to  the  ([uestions  in  dispute, 
and  to  certify  the  deposition  to  the  Court,  in  a  sealed  envelope, 
directed  to  the  Clerk  or  other  person  designated  or  agreed  upon, 
and  forward  to  him  by  mail  or  other  usual  channel  of  convey- 
ance. V 


Chap.  14] 


Nevada. 


167 


CHAPTER    XIV. 
JUDICIAL   RECORDS,    HOW    PROVED. 

A  judicial  record  of  tliis  State,  or  the  United  States,  or  any 
Territory,  may  be  proved  by  the  pro(biction  of  the  original,  or 
a  copy  thereof,  certified  by  the  Clerk  or  other  person  having 
the  legal  custody  thereof,  under  the  seal  of  the  Court,  to  be  a 
true  copy  of  such  record. 

The  records  and  judicial  proceedings  of  the  Courts  of  any 
other  State  of  the  United  States,  or  of  any  Territory,  may  be 
proved  or  admitted  in  the  Courts  of  this  State,  by  the  attesta- 
tion of  the  Clerk,  and  a  seal  of  the  Court  annexed,  if  there  be 
a  seal;  together  with  a  certificate  of  the  Judge,  Chief  Justice,  or 
presiding  Magistrate,  as  the  case  may  be,  that  the  said 
attestation  is  in  due  form. 

A  judicial  record  of  a  foreign  country  may  be  proved  by  the 
production  of  a  copy  thereof,  certified  by  the  Clerk,  with  the 
seal  of  the  Court  annexed,  if  there  be  a  seal — or  by  the  legal 
keeper  of  the  record,  with  the  seal  of  his  office  annexed,  if 
there  be  a  seal — to  be  a  true  copy  of  such  record,  together  with 
a  certificate  of  a  Judge  of  the  Court,  that  the  person  making 
the  certificate  is  the  Clerk  of  the  Court,  or  the  legal  keeper  of 
the  record,  and  in  either  case  that  the  signature  is  genuine,  and 
the  certificate  in  due  form;  and,  also,  together  with  the  certifi- 
cate of  the  Minister  or  Embassador  of  the  United  States,  or 
of  a  Consul  of  the  United  States  in  such  foreign  country,  that 
there  is  such  a  Court,  specifying  generally  the  nature  of  its 
jurisdiction,  and  verifying  the  signature  of  the  Clerk  and 
Judge,  or  other  legal  keeper  of  the  record. 

Second.  A  copy  of  the  judicial  record  of  a  foreign  country 
shall  also  be  admi.ssible  in  evidence  upon  proof: 

1.  That  the  copy  offered  has  been  compared  by  the  witness 
with  the  original,  and  is  an  exact  transcript  of  the  whole  of  it. 

2.  That  such  original  was  in  the  custody  of  the  Clerk  of 
the  Court,  or  other  legal  keeper  of  the  same;  and, 


B  M 


w 


168 


Nevada. 


[Part  4 


8.  That  the  copy  is  duly  attested  by  a  seal,  which  is 
proved  to  be  the  seal  of  the  Court  whore  the  record  remains, 
if  it  be  the  record  of  a  Court;  or  if  there  be  no  such  seal,  or  if 
it  be  not  the  record  of  a  Court,  by  the  signature  of  the  legal 
keeper  of  the  original. 


CHAPTER    XV. 

ACKNOWLEDGMENTS. 

The  proof  or  acknowledgment  of  every  conveyance  affecting 
any  real  estate  shall  be  taken  by  some  one  of  the  following 
officers : 

1.  If  acknowledged  or  proved  within  this  State,  by  some 
Judge  or  Clerk  of  a  Court  having  a  seal,  or  some  Notary 
Public,  or  Justice  of  the  Peace;  2>^'ovicled,  when  the  acknowl- 
edgment is  taken  before  a  Justice  of  the  Peace  in  any  other 
county  than  that  in  which  the  real  estate  is  situated,  the  same 
shall  be  accompanied  with  the  certificate  of  the  Clerk  of  the 
District  Court  of  such  county,  as  to  the  official  character  of  the 
Justice  taking  the  proof  or  acknowledgment,  and  the  authen- 
ticity of  his  signature. 

2.  If  acknowledged  or  proved  without  this  State,  Vjut 
within  tiie  United  States,  shall  be  taken  by  some  one  of  the 
following  officers: 

A  Judge  or  Clerk  of  a  Court  having  a  seal,  or  some  Notary 
Public,  or  Justice  of  the  Pt;ace,  or  by  any  Conunissionei' 
appointed  by  the  Governor  of  this  State  for  that  purpose; 
provided,  that  when  the  acknowledgment  is  taken  by  a  Justice 
of  the  Peace,  the  same  shall  be  accompanied  by  the  certificate 
of  the  Clerk  of  a  Court  of  record  of  the  county  having  a  seal, 
as  to  the  official  character  of  the  Justice  and  the  authenticity 
of  his  signature. 

3.  If  acknovvledg3d  or  proved  without  the  United  States, 
by  .some  Judge  or  Clerk  of  any  Court  of  any  State,  Kingdom 
or  Empire  having  a  S3al,  or  by  any  Notary  Public  therein,  or 
by  any  Minister,  Cou.missioner,  or  Consul  of  the  United  States, 
appointed  to  reside  therein. 


Chap.  IG] 


Nevada. 


100 


CHAPTER   XVI. 
AFFIDAVITS,  BEFORE  "y\?^HOM  TO  BE  TAKEN. 

An  affidavit  to  be  used  before  any  Court,  Judge,  or  officer 
of  this  State  may  Ijc  taken  before  any  Judge  or  Clerk  of  any 
Court,  or  any  Justice  of  the  Peace,  or  Notary  Public  in  this 
State. 

An  affidavit  taken  in  another  State,  or  in  a  Territory  of  the 
United  States',  to  be  used  in  this  State,  shall  be  taken  before  a 
Conunissioner  appointed  by  the  Governor  of  this  State  to  take 
affidavits  and  depositions  in  such  other  State  or  Territory,  or 
before  any  Notary  Public,  Judge  of  a  Court  of  record  having 
a  seal. 

An  affi  'nvit  taken  in  a  foreign  country,  to  be  used  in  this 
State,  shall  be  taken  before  an  Embassador,  Minister,  or  Consul 
of  the  United  States,  or  befcic  any  Judge  of  a  Court  of  record 
having  a  seal,  in  such  foreign  countrv. 

When  an  affidavit  is  taken  before  a  Judge  of  a  Court  in 
another  State,  or  in  a  Territorv  of  the  United  States,  or  in  a 
foreign  country,  the  genuineness  of  the  signature  of  the  Judge, 
the  existence  of  Court,  and  the  fact  that  such  Judge  is  a 
member  thereof,  shall  bo  certified  by  the  Clerk  of  the  Court, 
under  the  seal  thereof. 


CHAPTER   XVII. 
LIMITED  PARTNERSHIPS. 


May  be  formed  for  the  transaction  of  mercantile,  mechan- 
ical, mining,  or  manufacturing  business  by  two  or  more 
persons,  as  provided  for  by  special  statute.  But  nothing  con- 
tained in  the  Act  .shall  authorize  such  partner.ships  for  the 
purpose  of  banking  or  insurance. 

In  partner.ships  of  this  character  there  shall  be  one  or  more 
members  of  the  firm  to  be  known  as  general  partners,  and 


m 


v.- 


170 


Nevada. 


[Part  -t 


they  are  individually  liable  for  the  debts  of  the  firm.  The 
special  partners  are  liable  for  the  firm  debts  to  the  extent  of 
their  interest  in  the  firm  property  or  as.sets;  also  to  the  extent 
of  any  sums  of  money  by  them  received,  withdrawn,  or 
divided,  with  interest  thereon  from  the  time  they  were  so 
withdrawn  from  the  firm. 

The  business  of  the  partnership  shall  be  conducted  under  a 
firm  name,  in  which  the  names  of  the  f,'eneral  partners  only 
shall  be  inserted,  and  the  general  partners  onl}'  shall  ti'ansact 
the  busines.s.  If  the  name  of  any  special  partner  .shall  be  used 
in  said  firm  with  his  consent  or  privity,  or  if  he  shall  person- 
ally make  any  contract  respecting  the  concerns  of  the  partner- 
ship with  any  person  except  the  general  partners,  he  shall  be 
deemed  and  treated  as  a  general  partner. 


II 


^;    ^-( 


CHAPTER  XVIII. 
MARRIED  WOMEN. 

May  become  sole  traders  upon  petition,  and  by  order  of 
District  Court. 

When  they  are  sole  traders  they  become  liable  for  debts 
incurred  in  the  conduct  of  the  business  authorized  to  be  car- 
ried on  by  them  as  such;  and  their  separate  property,  if  they 
have  any,  is  liable  for  such  debts.    , 


,       CHAPTER  XIX. 

CORPORATIONS. 

May  be  formed  for  all  purposes  under  general  statute. 
Stockholders  are  not  individually  liable  for  any  debt  of  the 
corporation.  ,  -  , 


Chap.  20] 


Nevada. 


171 


CHAPTER  XX. 

CHATTEL    MORTGAGES. 

No  chattel  mortgage  upon  any  personal  property  shall  be 
valid  for  any  purpose,  except  possession  of  the  property  mort- 
gaged be  given  to  and  continuously  retained  by  the  mortgagee. 
Growing  crops,  however,  may  b.;  mortgaged. 


CHAPTER   XXI. 

INTEREST    AND    USURY. 

Where  there  is  no  express  contract  in  writing  fixing  a 
different  rate  of  interest,  interest  shall  be  allowed  at  the  rate 
of  seven  per  cent,  per  annum  for  all  moneys  after  they  become 
due  upon  any  bond,  bill,  or  promissory  note,  or  other  instru- 
ment in  writing;  on  any  judgment  recovered  before  any  Court 
in  this  State  for  money  lent;  money  due  on  settlement  of 
accounts  from  the  day  on  which  the  balance  is  ascertained; 
and  for  money  received  for  the  use  of  another. 

Parties  may  agree  in  writing  for  the  payment  of  any  rate 
of  interest  whatever  upon  money  due,  or  to  become  due,  on  any 
contract.  Judgments  rendered  upon  contracts  shall  conform 
thereto,  and  bear  the  interest  agreed  upon  by  the  parties,  which 
shall  be  specified  in  the  judgment;  'provideil,  only  the  amount 
of  the  original  claim  or  demand  shall  draw  interest  after 
judgment. 


CHAPTER  XXn. 

PROMISSORY  NOTES  AND  BILLS  OF  EXCHANGE. 

All  notes  in  writing  made  and  signed  by  any  person, 
whereby  he  shall  promise  to  pay  to  any  other  person,  or  to  his 
order,  or  to  the  order  of  any  other  person,  or  to  the  bearer,  any 


I' 


172 


Nevada. 


[Part  4 


Sinn  of  money  therein  mentioned,  sluiU  be  due  and  payable  as 
therein  expressed,  and  sliall  have  tiie  same  eti'ect,  and  be  nego- 
tiable in  like  manner,  as  inland  bills  of  exchange,  according  to 
the  custona  of  merchants. 

Days  of  grace  arc  allowed  upon  bills  and  promissory  notes 
where  not  otherwise  expressed. 

Damages  for  non-acceptance  of  bills  of  exchange  upon  the 
usual  protest  are  as  follows,  when  drawn  or  negotiated  in  this 
State : 

If  such  bills  .shall  have  been  drawn  upon  any  person  or 
per.sons  in  any  of  the  Uiuted  f^tates  ea.st  of  the  Rocky  Mount- 
ains, fifteen  dollars  'Jpon  the  hundred  upon  the  principal  sum 
specified  in  such  bill. 

If  such  )ill  shall  have  been  d)'awn  upon  any  person  or 
persons  in  any  part  or  place  in  Europe,  or  in  any  foreign 
country,  twenty  dollars  upon  the  hundred  upon  the  principal 
sum  specified  in  such  bill. 


CHAPTER  XXIII. 

MORTGAGES. 

A  mortgage  of  real  property,  whatever  its  terms,  shall  not 
be  deemed  a  conveyance,  so  as  to  enable  the  owner  of  the 
mortgage  to  recover  possession  of  the  real  property  without  a 
foreclosure  and  sale. 


m 


CHAPTER  XXIV. 
JOINT  DEBTORS— RELEASE  OF— ACT  1866. 

Any  one  of  two  or  more  joint  debtors,  or  parties  jointly,  or 
jointly  and  severally,  bound  by  any  contract  or  judgment,  may 
be  released  from  his,  her,  or  its  liability  upon  such  contract  or 
iudgment  by  the  creditor  or  creditors,  and  such  release  shall 
not  operate,  nor  be  held  to  operate,  in  law  as  a  release  to  the 
other  debtor  or  debtors  upon  such  contract  or  judgment,  ex- 


Cha])    24] 


Nevada. 


173 


cept  as  to  tho  relenHCcl  debtor's  proportion  of  such  liability  or 
debt,  estimated  upon  the  basis  of  the  number  of  such  debtors; 
Vnit  such  release  shall  operate  only  as  a  release  of  all  liability 
of  such  debtor  to  the  creditor  in  such  contractor  juilgmcnt, and 
as  a  credit  upon  the  same  of  such  proportionate  sum  as  lierein 
provided. 

It  shall  not  be  necessary  to  make  the  ^aity  released,  as  pro- 
vided in  the  foregoing  section,  a  party  to  an>'  action  upon  such 
contract,  but  the  creditor  or  creditors  aforesaid  may  pursue  tho 
remaining  debtors  for  the  remaining  ^  tion  ox  such  debt,  the 
sapvj  as  thouith  no  such  release  had  been  mauo, 


CHAPTER   XXV. 
INSOLVENT   DEBTORS. 

Insolvent  debtors  may  be  dischargeil  from  their  debts  by 
petitioning  the  District  Court  and  executing  an  assignment  for 
benefit  of  creditors;  providing  it  be  made  in  good  faith  and 
without  fraud. 

All  attachments  on  the  property  of  the  debtor  levied  within 
one  month  prior  to  the  tiling  of  the  petition,  are  dissolved,  and 
attaching  creditors  shall  pro  rate  with  other  creditors,  except 
that  their  costs  shall  be  paid  in  full. 

The  assignee  is  appointed  by  a  majority  vote,  in  amount,  of 
the  proved  claims  of  creditors. 

Assignee  to  give  bonds;  the  amount  thereof  to  be  fixed  by 
the  creditors,  and  if  not  by  them,  then  by  the  Judge. 

Assifjnee  to  be  allowed  commissions  on  net  amount  realized 
as  follows:  eight  per  cent,  upon  a  sum  not  exceeding  $10,000; 
five  per  cent,  upon  .sums  above  $10,000,  and  not  exceeding 
$30,000;  three  per  cent,  upon  all  sums  ai.Dve  $30,000. 

No  dischargj  shall  be  granted,  unless  at  the  time  of  filing- 
petition  the  debtor  shall  have  surrendered  property  (not 
exempt)  the  cash  value  of  which  shall  amount  to  at  least  fifty 
per  cent,  of  the  amount  of  liabilities,  unless  three-fourths  in 


174 


Nevada. 


[Part  4 


hs 


It- 


number  of  his  creditors,  and  one-third  in  amount  consent,  in 
■writing,  to  his  discharge. 

If  the  debtor  has  already  received  the  benefit  of  this 
insolvent  law,  he  shall  not  be  discharged  unless  the  property 
surrendered  by  him  amounts  to  at  least  fifty  per  cent,  of  his 
liabilities,  or  unless  three-fourths  of  his  creditors,  in  number 
and  amount,  consent  thereto  in  writing. 

An  adjudication  of  insolvency  may  be  made  on  the  petition 
of  five  or  more  creditors,  residents  of  this  State,  whose  debts 
or  demands  accrued  in  this  State,  and  amount  in  the  aggregate 
to  not  less  than  five  hundred  dollars;  irrovided,  that  said 
creditors,  or  either  of  them,  have  not  become  creditors  by 
assignment  within  thirty  days  prior  to  the  filing  of  said 
petition;  such  petition  must  be  filed  iri  the  District  Court  of 
the  count}',  or  city  and  county,  in  which  the  debtor  resides  or 
has  his  place  of  business,  and  must  be  verified  by  at  least  three 
of  the  petitioners,  setting  forth  that  such  person  is  about  to 
depart  from  the  State  with  intent  to  defraud  his  creditors,  or 
being  absent  from  the  State  with  such  intent,  remains  absent, 
or  conceals  himself  to  avoid  the  service  of  legal  process,  or, 
being  insolvent,  has  suffered  his  property  to  remain  under 
attachment  or  legal  process  for  four  days,  or  has  confessed  or 
offered  to  allow  judgment  in  favor  of  any  creditors,  or  willfully 
suffered  judgment  to  be  taken  against  him  by  default,  or  has 
suffered  or  procured  his  property  to  be  taken  on  legal  process 
with  intent  to  give  a  preference  to  one  or  more  of  his  creditors, 
or  has  made  an  assignment,  gift,  sale,  conveyance  or  transfer 
of  his  estate,  property,  rights  or  credits,  with  intent  to  delay, 
defraud  or  hinder  his  creditors,  or,  in  contemplution  of  in- 
solvency, has  made  any  payment,  gift,  grant,  sale,  conveyance 
or  transfer  of  his  estate,  property,  rights  or  credits,  or  has  been 
arrested  or  held  in  custody  by  virtue  of  any  civil  process  of 
Court  founded  on  any  debt  or  demand,  and  such  process 
remains  in  force  and  not  discharged  by  payment  or  otherwise 
for  a  period  of  four  days,  or,  being  a  merchant  or  tradesman, 
has  stopped  or  suspended  and  not  resumed  payment  within  a 
period  of  forty  days  after  maturity  of  any  written  acknowl- 


Chap.  25] 


Nevada. 


175 


edgment  of  indebtedness,  unless  the  party  holdino-  such 
acknovvledgment  has,  in  writing,  M^aived  the  right  to  proceed 
under  this  subdivision;  or,  being  a  bank  or  banker,  agent, 
broker,  factor,  or  commission  merchant,  has  failed  for  forty 
days  to  pay  any  moneys  deposited  with,  or  receixed  by  hiiu  in 
a  fiduciary  capacity,  upon  demand  of  payment,  except  savings 
and  loan  banks,  or  associations  who  loan  the  money  of  their 
stockholders  and  depositors,  on  real  estate,  and  provided  in 
their  by-laws  for  the  repayment  of  such  deposits. 

Partnerships  and  corporations  are  included  in  the  provisions 
of  this  insolvent  la^v,  except  that  corporations  shall  not  receive 


a  dischai'ge 


r 


t*  ^ 


PART  V. 


State  of  Oregon. 


Prepared  Expressly  for  this  Work  by  Dolph,  Bellinger, 
Malony  and  Simon,  Portland,  Oregon. 


CHAPTER  I. 
COURTS  AND  THEIR  JURISDICTION. 

The  judicial  power  of  the  Stale  is  vested  in  a  Supreme 
Court,  Circuit  Courts  and  County  Courts,  which  are  Courts 
of  record. 

Justices  of  the  Peace  are  invested  with  limited  judicial 
powers,  and  Municipal  Courts  may  be  created  to  administer 
the  regulations  of  incorporated  towns  and  cities. 

The  Supreme  Court  consists  of  three  Justices,  who  are 
elected  by  the  electors  throughout  the  State,  and  who  hold 
their  offices  for  six  years. 

The  Supreme  Court  has  jurisdiction  only  to  revise  the  final 
decisions  of  the  Circuit  Courts. 

There  are  one  or  more  Circuit  Judges  in  each  Juclicial  Dis- 
trict, who  hold  their  offices  for  six  years,  and  are  elected  by 
the  electors  in  each  District. 

The  Circuit  Courts  are  held  at  least  twice  in  each  year,  in 
each  county,  organized  for  judicial  purposes,  b)'^  a  Circuit 
Jutlge  of  the  District  wherein  such  county  is  situate.  All 
judicial  power,  authority  and  jurisdiction  not  vested  exclusive- 
ly in  some  other  Court  belongs  to  the  Circuit  Courts,  and  they 
have  appellate  jurisdiction  and  supervisory  control  over  the 


178 


Oregon. 


[Part 


Ik''    i 


U' 


County  Courts,  and  all  other  inferior  Courts,  officers  and 
tribunals. 

County  Courts  have  jurisdiction,  but  not  exclusive,  of  ac- 
tions at  law,  and  ail  proceedings  therein  and  connected  there- 
with, when  the  claim  or  subject  of  the  controversy  does  not 
exceed  the  value  of  five  hundred  dollars. 

Justices'  Courts  have  jurisdiction,  but  not  exclusive,  of  the 
following  actions: 

1.  For  the  recovery  of  money  or  damages  only,  where  the 
amount  claimed  does  not  exceed  $250. 

2.  For  the  recovery  of  specific  personal  property,  when 
the  value  of  the  property  claimed  and  the  damages  for  the 
detention  do  not  exceed  $250. 

3.  For  the  recovery  of  a  penalty  or  forfeiture,  not  exceed- 
ing $250. 

4.  To  give  judgment  without  action  upon  the  confession 
of  the  defendant. 

The  jurisdiction  does  not,  however,  extend  to  an  action  in 
which  the  title  to  real  property  shall  come  in  question,  or  to 
an  action  for  false  imprisonment,  libel,  slander,  malicious  prose- 
cution, criminal  conversation,  seduction,  or  upon  a  promise  to 
marrv. 


CHAPTER  II. 

TERMS  OF  COURT,  WHEN   AND  WHERE  HELD. 

The  following  are  the  times  and  places  of  holding  Courts, 
both  Federal  and  State,  in  the  several  counties  and  districts  of 
the  State.  ..',,  ■  ,   ...  •    .  •       , 

United  States  Circuit  Court,  District  of  Oregon. 

Regular  terms  arc  held  at  Portland  on  the  second  Monday 
in  April  and  first  Monday  in  October. 

Judges:  Hon.  Stephen  J.  Field,  As.s(jciate  Justice  of  the 
Supreme  Court,  and  Hon.  Lorenzo  Sawyer,  Circuit  Judge; 
Clerk,  R.  H.  Lamson;  Marshal,  John  Meyers. 


Chap.  2] 


Oregon. 


179 


United  States  District  Court,  District  of  Oregon. 

Regular  terms  held  at  Portland  on  the  first  Monday  of 
March,  July  and  November. 

Judge,  Hon.  Matthew  P.  Deady;  Clerk,*  R.  H.  Lamson; 
Marshal,  John  Meyers;  U.  S.  District  Attorney,  L.  L. 
McArthur;  RegLirter  in  Bankruptcy,  H.  H.  Northup. 

Supreme  Court  of  Oregon. 

The  Supreme  Court  consists  of  three  Judges:  Chief  Justice, 
Hon.  W.  W.  Thayer;  A.ssociate  Justices,  Hon.  W.  P.  Lord  and 
Hon.  R.  S.  Strahan. 

Regular  terms  held  at  Salem  on  the  first  Monday  in 
March  and  October  of  each  year,  and  at  Pendleton  on  the  first 
Monday  in  May  of  each  year. 

Circuit  Judges:  1st  District,  Hon.  L.  R.  Webster;  2d  Dis- 
trict, Hon.  R.  S.  Bean;  3d  District,  Hon.  R.  P.  Boise;  4th  Dis- 
trict, Hon.  E.  D.  Shattuck  and  L.  B.  Stearns;  oth  District. 
Hon.  F.  J.  Taylor;  6th  District,  Hon.  L.  B.  Ison  and  J.  A.  Fee; 
7th  District,  Hon.  J.  H.  Bird. 

Circuit  Courts  of  the  State  of  Oregon. 


COUNTIES. 


Baker 

Benton 

Clackamas.... 

Clatsop 

Columbia 

Coos 

Crook 

Curry 

Douglas 

Gilliam 

Grant 

Harney 

.lackson 

.Josephine 

Klamath 

Lake 

Lane 

Linn 

Malheur 

Jtarion 

Jlorrow  ..I..... 
JIultnomah.. 

Polk 

Sherman 

Tillamook.. .. 

VmatiUn 

fnion 

Wallowa 

AVasco 

Washington.. 
Yamhill 


TIMf;S  OF  HOLDING. 


First  Monday  in  December,  first  Monday  in  June. 

Second  Monday  in  April,  second  Monday  in  November. 

Third  Monday  in  April,  tlrsl  Monday  in  November. 

Third  Monday  in  February,  June  and  September. 

First  Tuesday  after  second  Monday  in  May  and  October. 

l'"'''st  Monday  in  May,  tirst  Monday  in  October. 

First  Monday  in  May,  third  Monday  in  September. 

Third  Monday  in  September. 

Third  Mon.  in  March,  fourth  Mon.  in  June,  and  first  Mon.  in  December. 

Second  Monday  in  April,  third  Monday  in  September. 

First  Monday  in  March,  tirst  Monday  in  September. 

Third  Monday  in  May,  second  Monday  in  October. 

First  Monday  in  April,  September  and  December. 

First  Monday  in  Marcli  and  August. 

Second  Monday  in  June,  and  first  Mondaj  in  November. 

Third  Monday  "in  May,  .second  Monday  in  October. 

First  Mon.  in  March,  second  Mon.  in  June,  and  fourth  Mon.  in  October. 

Second  .Mon.  in  March,  fourth  >[oii.  in  ,lune,  and  Iburth  Men.  in  October. 

Second  Monday  in  January,  fourth  Monday  in  ,Iune. 

Second  Monday  in  February-,  Jmie  and  October.  , 

I'ourth  Monday  in  March,  first  Monday  in  September. 

Third  Mon.  in  January,  first  Mon.  in  May,  and  first  Mon.  in  September. 

Second  Monday  in  May,  first  Monday  in  Docciuber. 

Second  Monday  in  -March,  first  Monday  in  October. 

Fourth  Monday  in  Aiifjiist. 

Third  Jlonday  in  January.  May  and  September. 

Second  Moinlay  in  February,  fourth  Monday  in  September. 

Third  Monday  in  April,  third  Monday  in  October. 

Second  Mon.  in  February,  fourth  Mon.  in  May,  and  second  Mon.  in  Nov. 

Third  Mon.  in  March,  third  Mon.  in  .luly,  and  fourth  .Mon.  in  November. 

Fourth  Monday  in  March,  and  fourth  Monday  in  September. 


180 


Oregon. 
Terms  of  the  County  Courts. 


[Part  5 


The  terms  of  the  County  Courts  of  the  several  counties 
shall  be  held  annually  as  follows: 

In  the  Counties  of  Josephine,  Curry,  Coos,  Columbia,  Clat- 
sop and  Wallowa,  on  the  first  Monday  in  January,  April,  July 
and  September. 

In  the  Counties  of  Grant,  Baker,  Lake,  Douglas,  Crook, 
Morrow,  Gilliam,  Malheur,  Tillamook,  Umatilla,  Klamath  and 
Wasco,  on  the  first  Monday  in  January,  March,  May,  July, 
September  and  November. 

In  the  Counties  of  Linn,  Jackson,  Lane,  Benton,  Polk^ 
Marion,  Washington,  Yamhill,  Clackamas  and  Multnomah,  on 
the  first  Monday  of  each  month. 

In  the  County  of  Union  on  the  first  Monday  in  January, 
March,  July,  September  and  November. 

In  the  County  of  Harney  on  the  first  Monday  in  April, 
June,  August,  October,  December  and  February. 

In  the  County  of  Sherman  on  the  first  Monday  in  January, 
April,  July  and  October. 


If* 


4, 


CHAPTER   III. 

COMMENCEMENT    OF    SUITS. 

Actions  at  law  are  commenced  by  filing  a  complaint  with 
the  Clerk  of  the  Court. 

At  any  time  after  the  action  is  commenced  the  plaintiff' 
may  cause  a  summons  to  be  served  on  the  defendant. 

The  summons  must  contain  the  name  of  the  Court  in  which 
the  complaint  is  fi^  ?d,  the  names  of  the  parties  to  the  action, 
and  the  title  thereof;  it  must  be  subscribed  by  the  plaintiff"  or 
his  attorney,  and  directed  to  the  defendant,  and  require  him  to 


its 


Chap.  3] 


Okegon. 


181 


appear  and  answer  the  complaint,  or  the  plaintiff  will  take 
judgment  for  a  sum  specified  therein. 

If  the  defendant  be  served  within  the  county  in  which  the 
action  is  commenced,  he  must  appear  and  answer  the  complaint 
within  ten  days  from  the  date  of  service;  but  if  served  in  any 
other  county  in  the  State,  he  must  appear  and  answer  the 
complaint  within  twenty  days  from  the  date  of  service. 


CHAPTER   IV. 

PLACE   OF    TRIAL    OF    CIVIL   ACTIONS. 

Actions  for  the  recovery  of  real  property,  or  an  estate,  or 
interest  therein,  or  for  injury  thereto,  and  for  the  recovery  of 
any  personal  property  distrained  for  any  cause,  shall  be  com- 
menced and  tried  in  the  county  in  which  the  subject  of  the 
action,  or  some  part  thereof,  is  situated. 

.  In  all  other  cases  the  action  shall  be  commenced  and  tried 
in  the  county  in  which  the  defendants  or  either  of  them  reside, 
or  may  be  found  at  the  commencement  of  the  action.  If  none 
of  the  parties  reside  in  this  State,  the  same  may  be  tried  in  any 
county  which  the  plaintiff  may  designate  in  his  complaint. 


CHAPTER   V. 

LIMITATION    OF   ACTIONS. 

The  pei'iods  prescribed   for  the  commencement  of  actions 
are  as  follows: 

Within  Ten  Years: 

Actions  for   the  recovery   of    real   property,  or  for  the 
recovery  of  the  possession  thereof. 


182 


Oregon. 


[Part  5 


Actions  upon  a  judgment  or  decree  of  any  Court  of  the 
United  States,  or  of  any  State  or  Territory  within  the  United 
States. 

Actions  upon  sealed  instruments. 

Within  Six  Years: 

An  action  upon  a  contract  or  liability,  express  or  implied, 
excepting  those  already  mentioned. 

An  action  upon  a  liability  created  by  statut  ,  jther  than 
a  penalty  or  forfeiture. 

An  action  for  waste  or  trespass  upon  real  property. 

An  action  for  taking,  detaining  or  injuring  personal  pro- 
perty, including  an  action  for  the  specific  recovery  thereof. 

Within  Three  Years: 

An  action  against  a  Sheriff,  Constable,  or  Coroner,  upon  a 
liability  incurred  by  the  doing  of  an  act  in  his  official  capacity, 
or  by  the  omission  of  an  official  duty;  but  this  does  not  apply 
to  an  action  for  an  escape. 

An  action  upon  a  statute  for  a  penalty  or  forfeiture. 

Within  Two  Years: 

An  action  for  libel,  slander,  assault,  battery,  or  false  im- 
prisonment; for  criminal  conversation,  or  for  an  injury  to  the 
person  or  rights  of  another  not  arising  on  contract. 

An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the 
State. 

Within  One  Year: 

An  action  against  a  Sheriff  or  other  officer  for  the  escape 
of  a  prisoner  arrested  or  imprisoned  on  civil  process. 


An  action  for  any  cause  not  hereinbefore  provided  for  shall 
be  commenced  within  ten  years  after  the  cause  of  action 
accrued. 


Chap.  G] 


Oregon. 


183 


CHAPTER   VI. 

ATTACHMENTS. 

Tlic  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any 
time  afterward,  but  before  judgment,  may  have  the  property 
of  the  defendant  attached,  by  filing  with  the  Clerk  of  the 
Court  an  undertaking,  with  one  or  more  sureties,  in  a  sum 
equal  to  the  amount  for  which  the  plaintiff  demands  judgment, 
and  not  less  than  $100;  and  to  the  effect  that  the  plaintiff  will 
pay  all  costs  that  may  be  adjudged  to  the  defendant,  and  all 
damages  which  he  may  sustain  by  reason  of  the  attachment,  if 
the  same  be  wrongful,  or  without  sufficient  cause,  not  exceeding 
the  amount  specified  in  the  undertaking;  and  the  plaintiff,  or 
some  one  in  his  behalf,  making  and  filing  an  affidavit  showinir: 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (speci- 
fying the  amount  of  such  indebtedness,  over  and  above  all 
legal  set-offs  or  counter-claims)  upon  a  contract,  express  or 
implied,  for  the  direct  payment  of  money,  and  that  the  pay- 
ment of  the  same  has  not  been  secured  by  any  mortgage,  lien, 
or  pledge  upon  real  or  personal  property;  or, 

2.  That  the  sum  for  which  the  attachment  is  asked  is  an 
actual  bona  fide  existing  debt  due  and  owing  from  the  de- 
fendant to  the  plaintiff,  and  that  the  attachment  is  not  sought, 
and  the  action  prosecuted  to  hinder,  delay  or  defraud  any 
creditor  of  the  defendant. 


CHAPTER   VII. 

ARREST   m   CIVIL   ACTIONS. 

The  Constitution  provides  that  there  shall  be  no  imprison- 
ment for  debt,  except  in  cases  of  fraud  or  absconding  debtors. 
The  defendant  may  be  arrested  in  the  following  cases: 


184 


Oregon. 


[Part' 5 


In  an  action  for  the  recovery  of  money  or  damages,  on  a 
cause  of  action  arising  out  of  contract,  wlien  the  defendant  is 
not  a  resident  of  the  State,  or  is  about  to  remove  therefrom ; 
or  when  the  action  is  for  an  injury  to  person  or  character,  or 
for  injuring  or  wrongfully  taking,  detaining,  or  converting 
property.  In  an  action  for  a  fine  or  penalty,  or  on  a  promise 
to  marry,  or  for  money  received  or  property  embezzled,  or 
fraudulently  misapplied  or  con\'ertcd  to  his  own  use  by  a 
public  officer,  or  an  attorney,  officer  or  agent  of  a  corporation, 
factor,  agent,  or  broker,  or  other  person  in  a  fiduciary  capacity. 
In  an  action  to  recover  the  possession  of  any  personal  property 
unjustly  detained,  when  the  property  or  any  portion  thereof 
has  been  concealed,  removed,  or  disposed  of. 

When  the  defendant  has  been  guilty  of  a  fraud  in  con- 
tracting the  debt,  or  incurring  the  obligation  for  which  the 
action  is  brouficht. 

When  the  defendant  has  removed  or  disposed  of  his 
property,  or  is  about  to  do  so,  with  intent  to  defraud  his 
creditors. 

No  female  can  be  arrested  in  any  action,  except  for  an 
injury  to  person,  character  or  property. 

At  any  time  after  the  conmiencement  of  the  action,  and 
before  judgment,  the  plaintift'  may  obtain  the  ari'est  of  the 
defendant  l)y  making  and  filing  with  the  Clerk  of  the  Court 
in  which  the  action  is  pending,  an  affidavit  that  the  plaintifiT 
has  a  sufficient  cause  of  action  therein,  and  that  the  case  is  one 
of  those  above-mentioned;  and  making  and  filing  with  such 
Clerk  an  undertaking  with  one  or  more  sureties,  in  a  sum  not 
less  than  one  hundred  dollars,  and  equal  to  the  amount  for 
which  plaintifi"  prays  judgment,  conditioned  that  plaintiff  will 
pay  all  costs  that  maybe  adjudged  to  the  defendant,  and  all 
damages  which  he  may  sustain  by  reason  of  the  arrest,  if  the 
same  be  wrongful  or  without  sufficient  cause,  not  exceeding 
the  amount  specified  in  the  undertaking. 


Chap.  8] 


Oregon. 


185 


CHAPTER  VIII. 

JUDGMENTS  AND  JUDGMENT  LIENS. 

A  judgment,  when  entered  becomes  a  lien  upon  the  real 
estate  owned  by  the  defendant  in  the  county  at  the  time  of 
the  entry,  and  such  as  he  may  subsetjuently  acquire.  The  lien 
continues  for  ten  years. 


CHAPTER  IX. 

EXECUTIONS,  EXEMPTIONS,  SALE  AND 
REDEMPTION. 

The  party  in  whose  favor  a  judgment  is  given  which  re- 
quires the  payment-  of  money,  the  deliver}'  of  real  or  personal 
property,  or  either  of  them,  maj',  at  any  time  after  the  entry 
thereof,  have  a  writ  of  execution  issued  for  its  enforcement. 

There  are  three  kinds  of  executions:  one  agaiuov,  the  prop- 
erty of  the  judgment  debtor,  another  against  his  person,  and 
the  third  for  the  delivery  of  real  or  personal  property. 

In  the  Circuit  and  County  Courts  executions  are  return- 
able in  .sixty  days,  and  in  Justices'  Courts  in  thirty  daj^s. 

In  the  Circuit  and  County  Courts  there  is  no  stay  of  ex- 
ecution, except  pending  an  appeal;  in  Justices'  Courts  execu- 
tion may  be  stayed  for  thirty  days  upon  filing  bond. 

The  following  personal  property  is  exempt  from  sale  under 
an  execution: 

Books,  pictures,  and  musical  instruments  to  the  value  of 
$75;  wearing  apparel  to  the  value  of  SlOO,  and  if  a  house- 
holder to  the  value  of  850  for  each  member  of  the  family; 
tools,  implements,  apparatus,  team,  vehicle,  harness,  or  librarj' 
— when  necessary  in  the  occupation  or  profession  of  a  judg- 
ment debtor — to  the  amount  of  S400;   if  the  judgment  debtor 


Pi 


*l 


186 


Oregon. 


[Part  o 


be  a  househoUler,  ten  sheep  with  one  year's  fleece,  two  cows, 
five  swine,  household  j^'oods,  furniture,  and  utensils,  to  the 
value  of  $800.  No  article  of  property  is  exempt  from  execu- 
tion issued  upon  a  judgment  for  the  purchase  price. 

Upon  a  sale  of  real  property,  when  the  estate  is  less  than  a 
leasehold  of  two  years'  unexpired  term,  the  sale  is  absolute. 
In  all  other  cases  such  property  is  subject  to  redemption. 

The  judgment  debtor,  or  his  successor  in  interest,  may  re- 
deem such  property  within  four  months  from  the  date  of  tlie 
order  confirming  the  sale,  by  paying  the  amount  of  the  pur- 
chase money,  with  interest  at  the  rate  ( f  ten  per  cent,  per 
annum  from  the  time  of  sale,  together  with  the  amount  of 
taxes  the  purchaser  may  have  paid  thereon. 

A  creditor  hfiving  a  lien  by  judgment,  decree  or  mortgage, 
on  any  portion  of  the  property  subsecjuent  in  time  to  that  on 
which  the  property  was  sold,  may  also  redeem  within  sixty 
days  from  the  date  of  the  order  confirming  the  sale. 


CHAPTER   X. 

PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 


After  the  issuing  of  an  execution  against  property,  and 
upon  proof  by  the  affidavit  of  the  plaintiff",  in  the  writ  or 
otherv/ise,  to  the  satisfaction  of  the  C'ourt  or  Judge  thereof, 
that  the  judgment  debtor  has  property  liable  to  execution 
which  he  refuses  to  apply  toward  the  satisfaction  of  the 
judgment,  such  Court  or  Judge  may,  by  an  order,  retjuire  the 
judgment  debtor  to  appear  and  answer  under  oath  concerning 
the  same.  If  it  appear  from  such  examination  that  the  judg- 
ment debtor  has  property  liable  to  execution,  the  Court  or 
Judge  shall  make  an  order  requiring  the  judgment  debtor  to 
apply  the  same  in  satisfaction  of  the  judgment.  Disobedience 
to  any  such  order  may  be  punished  as  for  a  contempt. 


if> 


Chap.  11] 


Oregon. 


m 


CHAPTER    XI. 

SECURITY    FOR    COSTS. 

Security  for  costs  can  only  bo  rof|uired  in  Justices'  Courts. 
If  the  plaintitt  is  a  non-resident  of  the  county,  the  Justice  may 
require  him  to  give  an  undertaking  with  one  or  more  sureties 
for  the  costs  and  disbursements  of  the  action  before  issuing  tlio 
summons,  and  if  at  any  time  before  the  commencement  of  the 
trial  the  defendant  apply  therefor,  the  Justice  must  recjuiro 
such  plaintiff  to  give  such  undertaking.  Upor  application  of 
defendant,  and  in  the  discretion  of  the  Justice,  the  plaintiff' 
if  a  resident  of  the  county,  may  be  re(iuired  to  give  an  under- 
taking for  costs.  The  undertaking  may  be  in  the  following 
form:  "I,  A  B,  or  We,  A  B  and  C  D,  undertake  to  pay  E  F, 
the  defendant  in  this  action,  all  costs  and  disbursements  that 
"may  bcp adjudged  to  him  in  this  action." 

The  sureties  must  possess  the  qualifications  of  bail  upon 
arrest,  and  if  required  by  the  defendant,  must  justify  in  a  sum 
not  less  than  §50. 


I'll 

m 


CHAPTER  XII. 

APPEALS. 

Any  party  to  a  judgment  or  decree  other  than  a  decree  or 
judgment  for  want  of  an  answer,  or  by  confession  may  appeal 
therefrom. 

An  appeal  to  the  Supreme  Court  shall  be  taken  by  serving 
and  filing  a  notice  of  appeal  within  six  months  from  the  entry 
of  the  judgment  or  decree  appealed  from,  or  to  the  Circuit 
Court,  within  thirty  days  after  such  entry,  and  not  otherwise. 

Appeals  from  the  Circuit  Courts  are  taken  to  the  Supreme 
Court,  and  from  County  Courts  and  Justices'  Courts  to  the 
Circuit  Court  of  the  county. 

Upon  an  appeal  from  the  Circuit  or  County  Court,  the 
appellant  must  file  an  undertaking,  with  one  or  more  sureties, 
to  the  effect  that  the  appellant  will  pay  all  damages,  costs  and 


188 


Oregon. 


[Part 


if 

m 


disbursements  which  may  be  awarded  against  him  on  the 
appeal;  and  if  the  judgment  or  decree  appealed  from  be  for 
the  recovery  of  money  or  personal  property,  or  the  value 
thereof,  to  obtain  a  stay  of  proceedings,  the  undertaking  must 
further  provide,  that  if  the  judgment  or  decree  appealed  from 
be  affirmed,  the  appellant  will  satisfy  it  so  far  as  affirmed. 

Upon  an  appeal  from  Justices'  Court,  the  undertaking  is 
to  the  effect  that  the  appellant  will  pay  all  costs  and  disburse- 
ments that  may  be  awarded  against  him  on  the  appeal,  and 
that  he  will  satisfy  any  judgment  that  may  be  given  against 
him  in  the  appellate  Court  on  the  appeal. 


ig^ 


CHAPTER  XIII. 
ESTATES  OP  DECEASED  PERSONS: 

Every  executor  or  administrator  must,  immediately  after  his 
appointment,  publish  a  notice  thereof  in  some  newspaper  pub- 
lished in  the  county,  for  four  successive  weeks.  Such  notice 
must  require  all  persons  having  claims  against  the  estate  to 
present  them  to  the  administrator  or  executor,  within  six 
months  from  the  date  of  such  notice,  with  the  proper  vouchers. 
A  claim  not  presented  within  six  months  is  not  barred,  but  it 
cannot  be  paid  until  the  claims  presented  within  that  period 
have  been  satisfied.  A  claim  not  due  or  contingent  must,  nev- 
ertheless, be  presented  as  any  other  claim.  Until  administra- 
tion has  been  completed,  a  claim  against  the  estate  may  be 
presented,  allowed  and  paid  out  of  any  assets  not  otherwise 
appropriated  or  liable. 

Every  claim  must  be  verified  by  the  affidavit  of  the  claim- 
ant, or  some  one  on  his  behalf,  who  has  personal  knowledge  ol' 
the  facts,  to  the  effect  that  the  amount  claimed  is  justly  due, 
that  no  payments  have  been  made  thereon  except  as  stated, 
and  that  there  is  no  just  counter-claim  to  the  same. 

There  is  no  specified  time  in  which  estates  are  required  to 
be  settled. 


Chap.  14] 


Oregon 


189 


CHAPTER    XIV. 
DESCENT    OF    REAL    PROPERTY. 


When  any  person  dies,  seized  of  any  real  property,  or  any 
right  thereto,  or  any  interest  therein,  not  having  lawfully 
devised  the  same,  such  real  property  descends,  subject  to  his 
debts,  as  follows: 

1.  In  equal  shares  to  his  children,  and  to  the  issue  of  any 
deceased  child  by  right  of  representation;  and  if  there  be  no 
child  of  the  intestate  living  at  the  time  of  his  death,  such  real 
property  descends  to  all  his  other  lineal  descendants;  and  if 
all  such  descendants  are  in  the  same  degree  of  kindred  to  the 
intestate,  they  take  such  real  property  equally ;  or  otherwise, 
they  take  according  to  the  right  of  representation. 

2.  If  the  intestate  leave  no  lineal  descendants,  such  prop- 
erty descends  to  his  wife;  and  if  he  leaves  no  wife  it  descends 
to  his  father. 

3.  Ii  the  intestate  leave  no  lineal  descendants,  wife  nor 
father,  :-uch  real  property  descends  in  equal  shares  to  his 
brothers  and  sisters,  and  to  the  issue  of  any  deceased  brother 
or  sister  by  right  of  representation  ;  but  if  the  intestate  leaves 
a  mother  also,  she  takes  an  equal  share  with  such  brothers  and 
sisters. 

4.  If  the  intestate  kv..\os  no  lineal  descendants,  wife, 
father,  brother  nor  sister  living  at  his  death,  such  real  property 
descends  to  his  mother,  to  the  exclusion  of  the  issue  of  his 
deceased  brothers  or  sisters. 

5.  If  the  intestate  leave  no  lineal  descendants,  wife,  father, 
mother,  brother  nor  sister,  such  real  property  descends  to  his 
next  of  kin  in  erjual  degree,  excepting  that  when  there  are  two 
or  more  collateral  kindred  in  equal  degree,  but  claiming 
through  different  ancestors,  those  who  claim  through  the 
nearest  ancestor  are  preferred  to  those  claiming  through  a 
more  remote  ancestor. 


hi'.' 


11 


?  *  '■- 


190 


Oregon. 


[Part 


6.  If  the  intestate  leaves  one  o  more  children  and  the  issue 
of  one  or  more  deceased  children,  and  any  of  such  surviving 
children  shall  die  under  age,  without  having  been  married,  all 
such  real  propei'ty  that  came  to  such  deceased  child  by  inher- 
itance from  such  intestate,  descends  in  equal  shares  to  the  other 
children  of  the  intestate,  and  to  the  issue  of  any  other  children 
of  such  intestate  who  shall  have  died,  by  right  of  repre- 
sentation; but  if  all  the  other  children  of  such  intestate  are 
also  dead,  and  any  of  them  shall  have  left  issue,  such  real 
property  so  inherited  by  such  deceased  child  descends  to  all 
the  issue  of  such  other  children  of  the  intestate  in  equal  shares, 
if  they  are  in  the  same  degree  of  kindred  to  such  deceased 
child  ;  otherwise  they  take  by  right  of  representation. 

7.     If  the  intestate  leaves  no  lineal  descendants  or  kindred, 
such  real  property  escheats  to  the  State  of  Oregon. 


■If 


CHAPTER    XV. 

DESCENT  OF   PERSONAL  PROPERTY. 

When  any  person  dies  possessed  of  any  personal  property, 
not  having  lawfully  bequeathed  the  same,  such  personal  prop- 
erty is  applied  and  distributed  as  follows  : 

1.  If  the  intestate  leaves  a  widow,  she  is  allowed  all  her 
articles  of  apparel  and  ornaments,  according  to  the  degree  and 
estate  of  the  intestate,  and  such  property  and  provisions  for 
the  use  and  support  of  herself  and  minor  children  as  shall  be 
allowed  and  ordered. 

2.  The  personal  property  of  the  intestate  remaining  after 
.such  allowance  is  applied  to  the  payment  of  the  debts  of  the 
intestate,  and  the  charges  and  expenses  of  administration. 

8.  The  residue,  if  any,  of  the  personal  property,  is  <li.s- 
tril)uted  among  the  persons  who  would  be  entitled  to  the  real 
property,  exc(ipt  as  otherwise  provided.  i 


Chap.  15] 


Oregon. 


191 


4.  If  the  intestate  leaves  a  husband,  such  husband  is 
entitled  to  the  whole  of  the  personal  property. 

5.  If  the  intestate  leaves  a  widow  and  issue,  such  widow 
is  entitled  to  receive  dne-half  of  such  personal  property  ;  but 
if  there  be  a  widow  and  no  issue,  f  he  is  entitled  to  the  whole 
of  such  personal  property. 

6.  If  there  be  no  husband,  widow  or  kindred,  the  whole 
escheats  to  the  State. 


CHAPTER   XVI. 

-      "-         HOMESTEADS    AND    DOWER. 

Homesteads. 
There  is  no  homestead  law  in  this  State. 

Dower. 

The  widow  of  every  deceased  person  is  entitled  to  dower,  or 
the  use  during  her  natural  life  of  one-third  part  of  all  the  lands 
of  which  her  husband  was  seized  of  an  estate  of  inheritance  at 
any  time  during  the  marriage,  unless  she  is  lawfully  barred 
thereof. 


CHAPTER   XVn. 

DEPOSITIONS. 

The  deposition  of  a  witness  out  of  this  State  may  be  taken 
upon  commission  issued  from  the  Court,  or  without  conmiission 
before  a  Commissioner  appointed  b}-  the  Governor  of  this  State 
to  take  depositions  in  oth(>r  States  or  countries.  The  com- 
mission may  be  issued  by  the  Clerk  of  the  Court,  or  the 
Justice,  in  any  cause  ponding  in  a  Justices'  Court,  on  the  appli- 
cation of  either  party,  upon  five  days'  previous  notice  to  the 
other.  It  is  issued  to  a  pei'son  agreed  upon  by  the  parties,  or 
if  they  do  not  agree,  to  a  Judge,  Justice  of  the  Peace,  Notary 


192 


Oregon. 


[Part 


n 


Public,  or  Clerk  of  a  Court  selected  by  the  officer  issuing  it. 
Such  interrogatories,  direct  and  cross,  as  the  parties  may  pre- 
pare may  be  annexed  to  the  commission. 

The  following  form  may  be  used : 

In  the Court  of   the  State  of   Oregon   for 

County. 

A  B,  Plaintiff, 

vs. 
C  D,  Defendant. 

Deposition  of  E  F,  a  witness  on  behalf  of  the 


m 

the  above  entitled  action,  taken  before  me,  a  Commissioner 
named  in  the  attached  commission,  and  a  (Notary  Public)  in 

and  for county.  State  of ,  on  the 

day  of ,  18 — ,  at  my  office,  at  the  city  of ,  in 

said  county  and  State,  who  being  first  duly  sworn  in  answer 
to  the  direct  and  cross  interrogatories  attaclied  to  said  com- 
mission in  their  order,  testified  as  follows : 

1.     To  the  first  direct  interrogatory  he  answers,  etc. 

When  completed  the  deposition  should  be  read  to  the 
witness,  and  then  subscribed  by  him. 

The  following  form  of  certificate  should  be  added  to  the 
deposition . 
State  of , 


ss. 


County  of 

I, ,  a  (Notary  Public)  in  and  for  said  county  and 

State,  and  Commissioner,  before  whom  the  foregoing  deposition 
was  taken,  do  hereby  certify  that  the  deposition  of  said 
witness,  E  F,  was  taken  before  me,  at  my  office  in  the  city  of 
,  in  said  county  and  State,  on  the day  of , 


18 — ,  between  the  hours  of o'clock  A.  M.  and 


o'clock 


—  M.  of  said  day ;  that  before  proceeding  to  the  examination, 
the  witness  was  duly  sworn  to  tell  the  truth,  the  whole  truth, 
and  nothing  but  the  truth  ;  tliat  at  the  same  time  and  place  I 
propounded  to  sjvid  witness  the  interrogatories  attached  to  said 
commission  in  their  order,  and  reduced  his  answers  thereto  to 
writing,  and  that  when  completed,  the  deposition  was  carefully 


^■$r 


Chap.  17] 


Oregon. 


193 


read  over  by  me  to  said  witness,  and  then  by  him  subscribed. 
In  witness  whereof,  I  have  hereunto  set  my  hand  and 

oflRcial  seal,  this day  of 18 — . 

[seal.]  , 

Notary  Public,  etc., 
.  and  Commissioner. 

Indorse  upon  the  envelope  the  title  of  the  Court  and  cause, 

and  the  words  "deposition  of ,"  and  forward  by  mail 

to  the  officer  issuing  the  commission. 


CHAPTER  XVIII. 

JUDICIAL   RECORD. 

The  judicial  record  of  a  sister  State  is  proved  by  the  pro- 
duction of  a  copy  thereof,  certified  by  the  Clerk  or  other  person 
having  the  legal  custody  of  the  record,  with  the  seal  of  the 
Court  affixed  thereto,  if  there  be  a  seal,  together  with  a  certifi- 
cate of  the  chief  Judge,  or  presiding  Magisti'ate,  that  the 
certificate  is  in  due  form  and  made  by  the  Clerk  or  other  person 
having  the  legal  custody  of  the  original. 


CHAPTER  XIX. 

ACKNOWLEDGMENTS. 

Deeds  may  be  acknowledged  within  this  State  before  any 
Judge  of  the  Supreme  Court,  County  Judge,  Justice  of  the 
Peace,  Notary  Public,  or  Clerk  of  a  Court.  No  acknowledg- 
ment of  any  conveyance  having  been  executed  shall  be  taken 
by  any  officer,  unless  he  shall  know  or  have  satisfactory 
evidence  that  the  person  making  such  acknowledgment  is  the 
individual  described  in  and  who  executed  such  conveyance. 

When  a  married  woman,  residing  in  this  State,  shall  join 
with  her  husband  in  a  deed  of  conveyance  of  real  estate  situ- 


w 


194 


Oregon. 


[Part  5 


I: 


ated  within  this  State,  she  shall  acknowledge  that  she  executed 
such  deed  freely  and  voluntary.  If  any  deed  shall  be  executed 
in  any  other  State,  Territory,  or  District  of  the  United  States, 
such  deed  may  be  executed  and  acknowledged  according  to  the 
laws  of  such  State,  Territory  or  District,  or  before  any  com- 
missioner appointed  by  the  Governor  of  this  State  for  such 
purpose ;  and  unless  the  acknowledgment  be  taken  before 
such  Commissioner,  such  deed  shall  have  attached  thereto  a 
certificate  of  the  Clerk  or  other  proper  certifying  officer  of  a 
Court  of  Record  of  the  county  or  district  within  which  such 
acknowledgment  was  taken,  under  the  seal  of  his  office,  that 
the  person  whose  name  is  subscribed  to  the  certificate  of  ac- 
knowledgment was,  at  the  date  thereof,  such  officer  as  he  is 
therein  represented  to  be,  and  that  he  believes  the  signature 
of  such  person  subscribed  thereto  to  be  genuine,  and  that  the 
deed  is  executed  and  acknowledged  according  to  the  laws  of 
such  State,  Territory  or  District. 


CHAPTER  XX. 

LIMITED    PARTNERSHIPS. 

Limited  partnerships  for  the  transaction  of  mercantile, 
mechanical  and  manufacturing  business  may  be  formed  in  this 
State.  The  persons  forming  such  partnership  make  and  sever- 
ally subscribe  and  acknowledge  a  certiticace  in  duplicate,  which 
contains  the  name  assumed  by  the  partnership,  the  names  and 
respective  places  of  residence  of  all  the  general  and  special 
partners,  the  amount  of  capital  which  each  special  partner 
contributes,  the  general  nature  of  the  business  to  be  transacted, 
and  the  time  when  the  partnership  is  to  commence  and  termi- 
nate ;  one  copy  of  such  certificate  is  filed  with  the  Clerk  of  the 
county  in  which  the  principal  place  of  business  of  the  partner- 
ship is  to  be.  A  copy  of  the  same  is  reijuired  to  be  published 
for  four  weeks  in  some  weekly  newspaper  published  in  the 
county.     The   business  must    be  conducted  under  a  name  in 


Chap.  20] 


Oregon. 


19; 


which  the  names  of  the  general  partners  only  shall  be  inserted, 
without  the  addition  of  the  word  company,  or  any  other  gen- 
eral term. 

Special  partners  are  not  personally  liable  for  any  debts  of 
the  partnership. 

During  the  continuance  of  any  such  partnership  no  part  of 
the  capital  stock  can  be  withdrawn,  nor  any  division  of  interests 
or  profits  made,  so  as  to  reduce  such  capital  stock  below  the 
sura  stated  in  the  certificate. 


CHAPTER   XXI. 
MARRIED  WOMEN. 


,1" 


i 


The  Constitution  of  the  State  provides  that  the  property 
and  pecuniary  rights  of  every  married  woman  at  the  time  of 
marriage,  or  afterward  acquired  by  gift,  devise,  or  inheritance, 
shall  not  be  subject  to  the  debts  or  contracts  of  the  husband, 
and  laws  shall  be  passed  providing  for  the  registration  of  per- 
sonal property;  which  has  been  done.  The  property,  both  real 
and  personal,  acquired  by  any  married  woman  during  covert- 
ure, is  free  from  and  not  liable  for  the  debts,  liabilities,  or 
contracts  of  her  husband. 

She  can  manage,  sell,  convey,  or  devise  the  same  by  will,  to 
the  same  extent  and  in  the  same  manner  that  her  husband  can 
property  belonging  to  him. 

A  married  woman  is  entitled  to  receive  the  wages  of  her 
personal  labor,  and  may  maintain  an  action  therefor  in  her 
own  name.  She  can  also  prosecute  and  defend  all  actions  at 
law  or  in  equity,  for  the  preservation  and  protection  of  her 
rights  and  property,  as  if  unmarried. 

Contracts  may  be  made  and  liabilities  incurred  by  a  mar- 
ried woman,  and  the  same  enforced  by  or  against  hor,  to  the 
same  extent  and  in  the  same  manner  as  if  she  were  unmarried. 


.! 


196 


Oregon, 


[Part  5 


CHAPTER  XXII. 
CORPORATIONS. 

Corporations  are  only  formed  under  general  laws,  and  can- 
not be  created  by  special  laws. 

The  stockholders  of  all  corporations  and  joint-stock  com- 
panies are  liable  for  the  indebtedness  of  such  corporations  to 
the  amount  of  their  stock  subscribed  and  unpaid,  and  no  more. 

No  bank,  banking  company  or  moneyed  institution  can  be 
created  under  the  laws  of  this  State,  nor  exist  in  the  State 
w^ith  the  privilege  of  making,  issuing,  or  putting  in  circulation 
any  bill,  check,  certificate,  promissory  note  or  other  paper,  or 
the  paper  of  any  bank,  company  or  person,  to  circulate  as 
money. 


CHAPTER  XXIII. 


CHATTEL   MORTGAGES. 


01 


m 


Chattel  mortgages  are  valid  against  third  parties  when  the 
property  is  retained  in  the  possession  of  the  mortgagor,  pro- 
vided the  mortgage  or  a  copy  thereof  is  filed  in  the  office  of  the 
County  Clerk.  Such  mortgage,  however,  ceases  to  be  valid 
as  against  creditors  and  subsequent  purchasers,  or  mortgagors 
in  good  faith,  after  the  expiration  of  one  year  from  the  filing 
of  the  same,  unless  within  thirty  days  preceding  the  expiration 
of  the  year  an  affidavit,  setting  forth  the  interest  which  the 
mortgagee  has  in  the  property  by  virtue  of  such  mortgage,  is 
made  and  annexed  to  the  instrument  or  copy  on  file.  The 
effect  of  such  affidavit  does  not  continue  beyond  one  year, 
when  a  similar  affidavit  must  be  made. 


fl 


Chap.  24] 


Oregon. 


197 


CHAPTER   XXIV. 

INTEREST    AND    USURY. 

Eight  per  cent,  per  annum  is  the  legal  rate  of  interest ;  but 
on  contracts,  interest  at  the  rate  of  ten  per  cent,  per  annum 
may  be  charged  by  express  agreement  of  the  parties. 

Usury  entails  the  forfeiture  of  the  principal  sum,  without 
interest,  to  the  school  fund  of  the  county  in  which  the  suit  is 
brought. 


CHAPTER   XXV. 
ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS. 

No  general  assignment  of  property  by  an  insolvent,  or  in 
contemplation  of  insolvency,  for  the  benefit  of  creditors  shall 
be  valid,  unless  it  be  made  for  the  benefit  of  all  his  creditors 
in  proportion  to  the  amount  of  their  respective  claims.  And 
such  assignments  shall  have  the  effect  to  discharge  any  and  all 
attachments  on  which  judgment  shall  not  have  been  taken  at 
the  date  of  such  assignment;  and  after  the  payment  of  the 
costs,  and  disbursements  thereof,  including  attorneys'  fees  al- 
lowed by  law,  in  case  of  judgment,  out  of  the  estate  of  the  in- 
solvent, such  claim  or  claims  shall  be  deemed  as  presented,  and 
share  pro  rata  with  other  claims,  as  hereinafter  provided. 

In  the  case  of  an  assignment  for  the  benefit  of  all  the  cred- 
itors of  the  assignor,  the  assent  of  the  creditors  shall  be  presumed. 

The  debtor  shall  annex  to  such  assignment  an  inventory^ 
under  oath,  of  his  estate,  real  and  personal,  according  to  the 
best  of  his  knowledge,  and  also  a  list  of  his  creditors  and  the 
amount  of  their  respective  demands,  but  such  inventory  shall 
not  be  conclusive  as  to  the  amount  of  the  debtor's  estate,  and 
such  assignment  shall  vest  in  the  assignee  the  title  to  any 
other  property  belonging  to  the  debtor  at  the  time  of  making 
the  assignment.  Every  assignment  shall  be  in  writing  and 
duly  acknowledged  in  the  same  manner  as  conveyances  of  real 


li--^ 


m 


If ' 


h    ' 


198 


Oregon. 


[Part  5 


estate,  and  recorded  in  the  county  where  the  person  making 
the  same  resides,  or  where  the  business  in  respect  of  which  tlio 
same  is  made  has  been  carried  on. 

The  assignee  shall  also  forthwith  file  with  the  Clerk  of  the 
Circuit  Court  of  the  county  where  such  assignment  shall  be 
recorded,  a  true  and  full  inventory  and  valuation  of  said  es- 
tate under  oath,  so  far  as  the  same  has  come  to  his  knowledge, 
and  shall  then  and  there  enter  into  a  bond  to  the  State  of  Ore- 
gon, for  the  use  of  the  creditors,  in  doijble  the  amount  of  the 
inventory  and  valuation,  with  two  or  more  sufficient  sureties, 
to  be  approved  by  said  Clerk,  for  the  faithful  performance  of 
said  trust;  and  the  assignee  may  thereupon  proceed  to  per- 
form any  duty  necessary  to  carry  into  effect  the  intention  of 
said  assignment. 

The  assignee  shall  forthwith  give  notice  of  such  assignment 
by  publication  in  some  newspaper  in  the  county,  if  any,  and  if 
none,  then  in  the  nearest  county  thereto ;  which  publication 
shall  be  continued  at  least  six  weeks;  and  shall  forthwith 
serve  a  notice  by  mail  to  each  creditor  of  whom  he  shall  be 
informed,  directed  to  their  usual  place  of  residence,  and  noti- 
fying the  creditors  to  present  their  claims,  under  oath,  to  him 
within  three  months  thereafter. 

At  the  expiration  of  three  months  from  the  time  of  lirst 
publishing  notice,  the  assignee  shall  report  and  file  with  the 
Clerk  of  the  Court  a  true  and  full  list,  under  oath,  of  all  such 
creditors  of  the  assignor  as  shall  have  claimed  to  be  such,  with 
a  statement  of  their  claims,  and  also  an  affidavit  of  publication 
of  notice,  and  a  list  of  the  creditors,  with  their  places  of  lesi- 
dence,  to  whom  notice  has  been  sent  by  mail,  and  the  date  of 
mailing,  duly  verified. 

Any  person  interested  may  appear  within  three  months 
after  filing  such  report,  and  file  with  said  Clerk  any  exceptions 
to  the  claim  or  demand  of  any  creditor,  and  the  Clerk  shall 
forthwith  cause  notice  thereof  to  be  given  to  the  creditor, 
which  shall  be  served  as  in  case  of  a  sununons,  returnable  at 
the  next  term ;  and  the  said  Court  shall,  at  such  term,  proceed 


Chap.  25] 


OllEOON 


199 


to  hear  the  proofs  an<l  allegations  of  the  parties  in  the  prem  ■ 
ises,  anil  shall  render  such  judgnient  thereon  as  shall  be  just, 
and  may  allow  a  trial  by  jury  thereon. 

If  no  exception  be  made  to  the  claim  of  any  creditor,  or  if 
the  same  has  been  adjudicated,  the  Court  shall  order  the 
assignee  to  make,  from  time  to  time,  fair  and  equal  dividends 
among  the  creditors  of  the  assets  in  his  hands  in  proportion  to 
their  claims,  and  as  soon  as  may  be,  to  render  a  final  account 
of  said  writ  to  said  Court,  who  nuiy  allow  such  conuiiissions  to 
said  assignees  in  the  tinal  settlement  as  may  be  considered  just 
and  right. 

The  assignee  shall  at  all  times  be  subject  to  the  order  of 
the  Court  or  Judge;  and  the  said  Court  or  Judge  may,  by 
citation  and  attachment,  compel  the  assignee,  from  time  to 
time,  to  file  reports  of  his  proceedings,  and  of  the  situation  and 
condition  of  the  trust,  and  to  proceed  in  the  faithful  execution 
of  the  duties  required  by  this  Act. 

No  assignment  shall  be  declared  fraudulent  or  void  for 
want  of  any  bill  or  inventory  as  provided  in  the  Act.  The 
Court  or  Judge  may,  upon  application  of  the  assignee,  or  any 
creditoi',  compel  the  appearance  in  person  of  the  debtor  before 
such  Court  or  Judge  forthwith,  or  at  the  next  term,  to  answer 
under  oath  such  matters  as  may  then  and  there  be  inquired  of 
him;  and  .such  debtor  may  then  and  there  be  fully  examined 
under  oath  as  to  the  amount  and  situation  of  his  estate,  and 
the  names  of  the  creditors  and  amounts  due  to  each,  with  their 
places  of  residence,  and  may  compel  the  delivery  to  the  assignee 
of  any  property  or  estate  embraced  in  the  assignment. 

The  assignee  shall,  from  time  to  time,  file  with  the  Clerk 
of  the  Court,  an  inventory  and  valuation  of  any  additional 
property  which  may  come  into  his  hands  under  said  assignment 
after  the  filing  of  the  fii'st  inventory,  and  the  Clerk  may  there- 
upon require  him  to  give  additional  security. 

Any  creditor  may  c^aim  debts  to  become  due,  as  well  as 
debts  due,  but  on  debts  not  due  a  reasonable  abatement  shall 
be  made  when  the  same  are  not  drawing  interest;  and  all  cre<l- 


It 


i  '  ^ 


200 


Oregon. 


[Part 


ll.|  y 


w"i 


itors  who  shall  not  exhibit  their  claims  within  the  term  of 
three  months  from  the  publication  of  notice;  as  aforesaid,  shall 
not  participate  in  the  dividends  n:.til  after  payment  in  full  of 
all  claims  presented  within  said  time  and  allowed  by  the  Court. 

Any  assirjnee  as  aforesaid,  shall  have  as  full  power  and 
autlu^rity  to  dispose  of  all  estate,  real  and  personal,  assigned, 
as  the  debtor  ha<l  at  the  time  of  assignment,  and  to  sue  for  ami 
recover  in  the  name  of  .such  assignee  everything  belonging  (n- 
appertaining  to  said  estate,  and  generally  do  whatsoever  the 
debtor  might  have  done  in  the  premi.ses;  but  no  sale  of  real 
estate  belonging  to  said  trust  shall  be  made  without  notice, 
published  as  in  case  of  sales  of  real  estate  on  execution,  unless 
the  Court  shall  order  and  direct  otherwise. 

In  case  any  assignee  shall  die  before  the  closing  up  of  his 
trust,  or  in  case  any  assignee  shall  fail  or  neglect,  for  the  period 
of  twenty  days  after  the  making  of  any  assignment,  to  file  an 
inventory  and  valuation,  and  give  bonds  as  required  by  this 
Act,  the  Circuit  Court,  or  Judge  thereof,  of  the  county  where 
such  an  assignment  may  be  recorded,  on  the  application  of  any 
person  interested,  shall  appoint  some  person  to  execute  the 
trust  embraced  in  such  assignntent,  and  such  person  on  giving 
the  bond,  with  sureties,  as  recjuired  above  of  the  assignee,  shall 
possess  all  the  powers  conferred  on  such  assignee,  and  shall  be 
sul)ject  to  all  the  duties  lnvr^by  impo.sed,  as  fully  as  though 
named  in  the  assignment;  and  in  case  any  security  shall  be 
discovered  insufficient,  ov  '.n  complaint  before  the  Court  or 
Judge,  it  should  be  made  to  appear  that  any  assignee  is  guilty 
of  wasting  or  misapplying  the  trust  estate,  said  Court  or 
Judge  may  direct  and  require  additional  .security,  and  may  re- 
move such  assignee,  and  may  appoint  others  instead;  and  such 
person  so  appointed,  on  giving  bond,  shall  have  full  power  to 
execute  such  duties,  and  to  demand  and  sue  for  all  estate  in 
in  the  hands  of  the  person  removed,  and  to  demand  and  recov- 
er the  amount  and  value  of  all  moneys  and  property  or  estate 
so  wasted  and  misapplied,  which  he  may  neglect  or  refuse  to 
make  satisfaction  for,  from  such  person  and  his  sureties. 


Chap.  2')] 


Oregon. 


201 


Upon  the  application  of  two  or  moro  croditors  therefor  by 
petition  to  the  Juil^^e  of  tlie  Circuit  Court  of  the  County  in 
which  .such  a.ssigninent  i.s  or  .should  be  recorded  at  any  time 
within  thirty  days  from  the  making  or  recording  of  .such  a.s- 
.signment,  it  is  the  duty  of  the  Circuit  Judge  to  direct  the 
Clerk  of  the  Court  to  order  a  meeting  of  the  creditors  of  the 
debtor  to  choose  an  assignee  of  tlie  estate  in  lieu  of  the  assig- 
nee named  by  the  debtor  in  his  assignment;  thereupon  the 
Clerk  of  the  Court  shall  forthwith  give  notice  to  all  the  credi- 
tors of  said  debtor  to  meet  at  his  office  at  a  time  stated,  to 
select  an  assignee.  Such  assignee  shall  be  a  resident  of  the 
same  county  as  the  assignor.  The  creditors  may  appear  in  per- 
son or  by  proxy,  and  a  majority  in  number  and  value  of  said 
creditors  attending  such  meeting  shall  select  an  assignee.  In 
the  event  that  no  one  receives  a  majority  vote  of  said  creditors 
who  represent  at  least  one-half  of  all  claims  represented  at 
such  meeting,  then  and  in  that  event  said  Clerk  shall  certify 
that  fact  to  the  Judge  of  the  Circuit  Court,  and  thereupon 
said  Circuit  Judge  shall  select  and  appoint  an  assignee.  The 
assignee  so  selected  by  the  creditors,  or  appointed  by  the  Cir- 
cuit Judge,  upon  giving  the  bond  required  of  an  assignee,  shall 
possess  all  the  powers  and  be  subject  to  all  the  duties,  as  fully 
to  all  intents  and  purposes  as  though  named  in  the  debtor's 
assignment.  From  the  time  of  the  pending  of  an  application 
to  elect  an  assignee  by  the  creditors,  and  until  the  same  shall 
be  terminated  by  the  election  or  appointment,  no  property  of 
the  debtor,  except  perishable  property,  shall  be  sold  or  disposed 
of  by  any  assignee,  but  the  same  shall  be  safely  and  securely 
kept  until  the  election  or  appointment  of  an  assign^-e. 

Whenever  it  .shall  appear  to  the  satisfaction  of  the  Court 
or  Judge  thereof,  when  the  assignment  is  pending  upon  the 
final  report  of  the  assignee  chosen  by  the  creditors  or  other- 
wise, that  the  assignor  has  been  guilty  of  no  fraud  in  making 
the  assignment,  nor  concealment  or  division  of  his  property, 
or  any  part  thereof,  in  order  to  keep  the  same  beyond  the 
reach  of  his  creditors,  but  that  he  has  acted  fairly  and  justly 


1^ 


r  > 


202 


Oregon. 


[Part 


in  all  respects,  that  his  estate  has  been  made  to  realize  the 
fullest  amount  possible,  and  not  less  than  fifty  per  cent,  of  the 
full  amount  of  his  indebtedness  over  and  above  all  expenses  of 
the  assignment,  the  said  Court  or  Judge  thereof  shall,  upon 
the  allowance  of  the  final  account  of  said  assignee,  make  an 
order  cHscharging  the  assignor  from  any  further  liability  on 
account  of  any  indebtedness  existing  against  him  prior  to  the 
malcing  of  such  assignment,  and  thereafter  such  assignor  shall 
be  freed  from  any  liability  on  account  of  any  unsatisfied  por- 
tion of  the  indebtedness  against  him  prior  to  the  making  of 
his  assignment. 


PART  VI. 


I 


Idaho  Territory. 


Prepared  Expressly  for  this  Work  by  Jonas  W.  Brown^ 

Boise  City. 


CHAPTER  I. 
COURTS,  THEIR  JURISDICTION  AND  TERMS. 

The  judicial  power  of  the  Territory  is  vested  in  a  Supreme 
Court,  three  District  Courts,  Probate  Courts  for  each  County, 
and  Justices  of  the  Peace. 

The  Supreme,  District  and  Probate  Courts  are  Courts  of 
record. 

The  Supreme  Court. 

Has  original  and  appellate  jurisdiction. 

Its  original  jurisdiction  extends  to  the  issuance  of  writs  of 
mandate,  review,  prohibition,  habeas  corpus,  and  all  writs 
necessary  to  the  exercise  of  its  appellate  jurisdiction. 

Its  appellate  jurisdiction  extends  to  a  review  of  all  cases 
removed  to  it  under  such  regulations  as  are  or  may  be  pre- 
scribed by  law  from  the  final  decisions  of  the  District  Courts. 

There  must  be  at  least  one  term  in  each  year,  to  bo  held  at 
the  Capitol  of  the  Territory,  at  such  time  as  the  Court  may  by 
rule  or  order  designate.  Additional  terms  may  also  be  hold  by 
order  of  the  Court. 


J' 


204 


Idaho. 


[Part  G 


District  Courts. 

The  jurisdiction  of  the  District  Courts  extends: 

1.  To  all  civil  actions  for  relief  formerly  given  in  Courts 
of  equity. 

2.  To  all  civil  actions  in  which  the  subject  of  litigation  is 
not  capable  of  pecuniary  estimation. 

3.  To  all  civil  actions  in  which  the  subject  of  litigation  is 
capable  of  pecuniary  estimation,  which  involve  the  title  or  ros- 
session  of  real  estate;  or  the  legality  of  any  tax,  unju>*t  •? -t?  ■ 
ment,  toll  or  municipal  fine,  or  in  which  the  demand  ■  \\,>- 
value  of  the  property  in  controversy  exceeds  one  hundred 
dollars. 

4.  To  all  special  proceedings. 

5.  To  the  issuance  of  writs  of  mandate,  review,  prohibition, 
habeas  corpus,  and  all  writs  necessary  to  the  exercise  of  its 
powers. 

G.     To  the  trial  of  all  indictments. 

7.  Its  appellate  jurisdiction  extends  to  all  cases  arising  in 
Probate  Courts  or  Justices'  Courts;  and  to  all  other  matters  and 
cases  wherein  an  appeal  is  allowed  by  law.  There  are  two 
terms  of  District  Court  held  in  each  c  unty  each  year;  terms 
are  tixed  by  the  Supreme  Court. 

Probate  Courts. 

There  must  be  a  Probate  Court  held  in  e.«ch  of  the  counties. 
The  Probate  Court  has  jurisdiction  in  all  probate  matters.  In 
addition  to  their  probate  jurisdiction,  to  hear  and  determine  all 
civil  causes  wherein  the  damage  or  debt  claimed  does  not  ex- 
ceed the  sum  of  five  hundred  dollars,  exclusive  of  interest,  and 
concurrent  jurisdiction  with  Justices  of  the  Peace  in  criminal 
cases. 

Justices'  Courts. 

The  civil  jurisdiction  of  these  Courts  within  their  respect- 
ive precincts  or  cities  extends:  - 

1.  To  an  action  arising  on  contract,  for  i,]i?i  recovery  of 
money  only,  if  tlie  sum  claimed  does  lot  exciie  i  'hroe  hun- 
dred dollars. 


i 


Chap.  1] 


Idaho. 


205 


2.  To  an  action  for  damages  to  the  person,  or  for  taking 
or  detaining  personal  property,  or  for  injuring  personal  pro- 
perty, or  for  an  injury  to  real  property,  where  no  issue  is  raised 
by  the  answer  involving  the  plaintiffs  title,  or  possession  of 
the  same,  if  the  damages  claimed  do  not  exceed  three  hundred 
dollars. 

3.  To  an  action  for  a  fine,  penalty  or  forfeiture,  not  ex- 
ceeding three  hundred  dollars,  given  by  statute  or  the  ordin- 
ance of  an  incorporated  city. 

4.  To  an  action  upon  a  bond  or  undertaking  conditioned 
for  the  payment  of  money  not  exceeding  three  hundred  dollars, 
though  the  penalty  exceed  that  sum;  the  judgment  to  be  given 
for  the  sum  actually  due.  When  the  payments  are  to  be  made 
by  installments,  an  action  may  be  brought  for  each  install- 
ment as  it  becomes  due. 

5.  To  an  action  to  recover  the  possession  c  personal  prop- 
erty when  the  value  of  such  property  does  not  exceed 
three  hundred  dollar.s. 

6.  To  take  and  enter  judgment  on  confession  of  a  defend- 
ant when  the  amount  confes,sed  does  not  exceed  three  hundred 
dollars. 

The  jurisdiction  conferred  shall  not  extend,  however,  to  a 
civil  action  in  which  the  title  or  possession  of  real  property  is 
put  in  issue. 


CHAPTER  II. 
LIMITATION  OF  ACTIONS. 


I 


For  the  recovery  of  real  property. 

The  people  of  this  Territory  will  not  sue  any  person  for  or 
in  respect  to  any  real  property,  or  the  issues  or  profits  thereof, 
by  reason  of  the  right  or  title  of  the  people  to  the  same,  unless: 

1.  Such  right  or  title  shall  have  accrued  within  ten  years 
before  any  action  or  other  proceeding  for  the  same  is  com- 
menced; or, 


Fir 
m 


> 


m^ 


m 


Idaho. 


[Part  6 


2.  The  people  or  those  from  whom  they  claim,  shall  have 
received  the  rents  and  profits  of  such  real  property,  or  of  some 
part  thereof  within  the  space  of  ten  years. 

No  action  for  the  recovery  of  real  property,  or  for  the  re- 
covery of  the  possession  thereof,  can  be  maintained,  unless  it 
appear  that  the  plaintiff,  his  ancestor,  predecessor  or  grantor, 
was  sei  :  '  "''■  nossessed  of  the  property  in  questic--  within  five 
years  belo  .e  commencement  of  the  action;  and  this  section 
includes  possessory  rights  to  lands  and  mining  claims. 

No  cause  of  action,  or  defense  to  an  action,  arising  out  of 
the  title  to  real  property,  or  to  rents  or  profits  out  of  the  same, 
can  be  effectual  unless  it  appears  that  the  person  prosecuting 
the  action,  or  making  the  defense,  or  under  whose  title  the 
action  is  prosecuted  or  the  defense  is  made,  or  the  ancestor, 
predecessor,  or  grantor,  of  such  person  was  seized  or  possessed 
of  the  premises  in  question  within  five  years  before  the  com- 
mencement of  the  act  in  respect  to  which  such  action  is  pro- 
secuted ot  defense  made. 

If  a  person  entitled  to  commence  an  action  for  the  recov- 
ery of  real  property,  or  for  the  recovery  of  the  possession 
thereof,  or  to  make  any  entry  or  defense  founded  on  the  title 
to  real  property,  or  to  rents  or  services  out  of  the  same,  be  at 
the  time  such  title  first  descend."  or  accrues  either — 

1.  Within  the  age  of  majority;  or, 

2.  Insane;  or, 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  upon 
conviction  of  a  criminal  offense  for  a  term  less  than  for  life; 
or, 

4.  A  married  woman  and  her  husband  be  a  necessary 
\  .trty  with  her  in  commencing  such  action  or  making  such 
entry  or  defense. 

The  term  during  which  such  disability  continues  is  not 
deemed  any  portion  of  the  time  in  this  title  limited  for  the 
commencement  of  such  action  or  the  making  of  such  entry  or 
defense;  but  such  action  may  be  commenced,  or  entry  or  de- 
fense made  within  the  period  of  five  years  after  such  dis- 
ability shall  cease,  or  after  the  death  of  the  person  entitled 


Chap.  2] 


Idaho. 


2or 


who  shall  die  under  such  disability;  but  such  action  shall  not 
be  commenced,  or  entry  or  defense  made,  after  that  period. 

The  periods  prescribed  for  the  commencement  of  actions 
other  than  for  real  property,  are  as  follows : 

.  Within  Six  Y^ ears: 

1.  An  action  upon  a  judgment  or  decree  of  any  Court  of 
the  United  States,  or  of  any  State  or  Territory  within  the 
United  States. 

2.  An  action  for  mesne  profits  of  real  property. 

Within  Five  Years: 

An  action  upon  any  contract,  obligation,  or  liability,  found- 
ed upon  an  instrument  in  writing. 

Within  Four  Years: 

An  action  upon  a  contract,  obligation,  or  liability  not 
founded  upon  an  instrument  of  writing. 

Within  Three  Years: 

1.  An  action  upon  a  liability  created  b^v  statute,  other 
than  a  penalty  or  forfeiture. 

2.  An  action  for  trespass  upon  real  property. 

3.  An  action  for  taking,  detaining,  or  injuring  any  goods 
or  chattels,  including  actions  for  the  specific  recovery  of  per- 
sonal property. 

4.  An  action  for  relief  on  the  ground  of  fraud  or  mistake. 
The  cause  of  action  in  such  case  is  not  to  be  deemed  to  have 
accrued  until  the  discovery,  by  the  aggrieved  party,  of  the 
facts  constituting  the  fraud  or  mistake. 

'  Within  Two  Years: 

1.  An  action  against  a  Sheriff*,  Coroner,  or  Constable,  up- 
on the  liability  incurred  by  the  doing  of  an  act  in  his  official 
capacity,  and  in  virtue  of  his  office,  or  by  the  omission  of  an 
official  duty,  including  the  non-payment  of  money  collected 
upon  an  execution. 


% 


hiUji 


I  if 


hi    V 


208 


Idaho. 


[Part  6 


Ma 


2.  An  action  upon  a  statute  for  a  ^jcnalty  or  forfeiture, 
where  the  action  is  given  to  an  individual,  or  to  an  individual 
and  the  Territory,  except  where  the  statute  imposing  it  pre- 
scribes a  different  limitation. 

3.  An  action  upon  a  statute,  or  upon  an  undertaking  in  a 
criminal  action  for  a  forfeiture  or  penalty  to  a  county  or  the 
people  of  the  Territory. 

4.  An  action  to  recover  damages  for  the  death  of  one 
caused  by  the  wrongful  act  of  another. 

5.  An  action  for  libel,  slander,  assault,  battery,  false  im- 
prisonment, or  seduction. 

6.  An  action  against  a  Sheriff  or  other  officer  for  the  es- 
cape of  a  prisoner  arrested  or  imprisoned  on  civil  process. 

Within  One  Year: 

An  action  against  an  officer  or  officer  defacto: 

1.  To  recover  any  goods,  wares,  merchandise,  or  any  other 
property  seized  by  any  such  officer  in  his  official  capacity  as 
tax  collector,  or  to  recover  the  price  or  value  of  any  goods, 
wares,  merchandise,  or  any  other  personal  property  so  seized* 
or  for  damages  for  the  seizure,  detention,  sale  of,  or  injury  to, 
any  goods,  wares,  merchandise,  or  other  personal  property 
seized,  or  for  damages  done  to  any  person  or  property  in  mak- 
ing any  such  seizure. 

2.  For  money  paid  to  any  such  officer  under  protest,  or 
seized  by  such  officer  in  his  official  capacity  as  a  collector  of 
taxes,  and  which,  it  is  claimed,  ought  to  be  refunded. 


[I 


*f 


Within  Six  Monties. 

Actions  on  claims  against  a  County,  which  have  been  re- 
jected by  the  Board  of  Commissioners,  must  be  commenced 
within  six  months  after  the  first  rejection  thereof  by  such 
Board. 

In  an  action  brought  to  recover  a  balance  due  upon  a 
mutual,  open  and  current  account,  where  there  have  been  re- 
ciprocal demands  between  the  parties,  the  cause  of  action  is 


Chap.  2] 


Idaho. 


209 


deemed  to  have  accrued  froii  the  time  of  the  last  item  proved 
in  the  account  on  either  side. 

To  actions  brought  to  recover  money  or  other  property  de- 
posited with  any  bank,  banker,  trust  company,  or  savings  and 
loan  society,  no  limitation  begins  to  run  until  after  an  author- 
ized demand. 

An  action  for  I'elief  not  hereinbefore  provided  for,  must  be 
commenced  within  four  years  after  the  cause  of  action  shall 
have  accrued. 

General  Provisions. 

An  action  is  commenced  within  the  meaninfr  of  the  title, 
when  the  complaint  is  tiled. 

If,  when  the  cause  of  action  accrues  against  a  person,  he  is 
out  of  the  Territory,  the  action  may  be  commenced  within  tlie 
term  herein  limited,  after  his  return  to  the  Territory;  and  if, 
after  the  cause  of  action  accrues,  he  departs  from  the  Territory, 
the  time  of  his  absence  is  not  part  of  the  time  limited  for  the 
commencement  of  the  action. 

If  a  person  entitled  to  bring  an  action  bo,  at  the  time  the 
cause  of  action  accrues,  either  within  the  age  of  majority,  in- 
.sane,  imprisoned  on  a  criminal  charge,  or  in  execution  under 
the  sentence  of  a  Criminal  Court  for  a  term  less  than  for  life, 
or  a  married  woman,  and  her  husband  be  a  necessary  party 
with  her  in  commencing  such  action,  the  time  of  such  disability 
is  not  a  part  of  the  time  limited. 

If  a  pei'son  entitled  to  bring  an  action  die  before  the  expir- 
ation of  the  time  limited  for  the  commencement  thereof,  and 
the  cause  of  action  survive,  an  action  may  be  commenced  by 
his  representatives,  after  the  expiration  of  that  time,  and  with- 
in six  months  from  his  death.  If  a  person,  against  whom  an 
action  may  be  brought,  die  before  the  expiration  of  the  time 
limited  for  the  commencement  thereof,  and  the  cause  of  action 
survive,  an  action  may  be  commenced  against  his  representa- 
tives after  the  expiration  of  that  time,  and  within  one  year 
after  the  issuing  of  letters  testamentary  or  of  administration. 


rr'i 


I- 'Ml'. 


I; 


II M 


210 


Idaho. 


[Part  G 


When  a  person  is  an  alien  subject,  or  citizen  of  a  country 
at  war  with  the  United  States,  the  time  of  the  continuance  of 
the  war  is  not  part  of  the  period  limited  for  the  commence- 
ment of  the  action. 

When  the  connnencemcnt  of  an  action  is  stayed  by  injunc- 
tion or  statutory  prohibition,  the  time  of  the  continuance  of 
the  injunction  or  prohibition  is  not  part  of  the  time  limited  for 
the  commencement  of  the  action. 

When  a  cause  of  action  has  arisen  in  another  State,  or  in  a 
foreign  country,  and  by  the  laws  thereof  an  action  thereon  can- 
not there  be  maintained  against  a  person  by  reason  of  the 
lapse  of  time,  an  action  thereon  shall  not  be  maintained  against 
him  in  this  Territory,  except  in  favor  of  one  who  has  been  a 
citizen  of  this  Territory,  and  who  has  held  the  "ause  of  action 
from  the  time  it  accrued. 

No  acknowlodgnient  or  promise  is  sufficient  evidence  of  a 
new  or  continuing  contract,  by  which  to  take  the  case  out  of 
the  operation  of  the  statute,  unless  the  same  is  contained  in 
some  writing,  signed  by  the  party  to  be  charged  thereby. 


CHAPTER  III. 

PARTIES  TO  CIVIL  ACTIONS. 

Every  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  except  as  otherwise  provided  in  the  Code. 
In  the  case  of  an  assignment  of  a  thing  in  action,  the  action 
by  the  assignee  is  without  preju<lice  to  any  set-otl',  or  other  de- 
fence existing  at  the  time  of,  or  before  notice  of  the  assignment; 
but  this  does  not  apply  to  a  negotiable  instrument,  transferred 
in  good  faith  and  upon  good  consideration,  before  maturity. 
An  executor  or  administrator,  or  trustee  of  an  express  trust,  or 
a  person  expi-essly  authorized  by  statute,  may  sue  without  join- 
ing with  him  the  persons  for  whose  benefit  the  action  is  prose- 
cuted. When  a  married  woman  is  a  party,  her  husband  must 
be  joined  with  her,  except : 


Chap.  3] 


Idaho. 


211 


1.  When  the  action  concerns  her  separate  property,  or  her 
right  or  claim  to  the  homestead  property,  she  may  sue  alone. 

2.  When  the  action  is  between  herself  and  her  husband, 
she  may  sue  or  be  sued  alone. 

3.  When  she  is  living  separate  and  apart  from  her  hus- 
band, by  reason  of  his  desertion  oi'  her,  or  by  agreement  in 
writing  entered  into  between  them,  she  may  sue  or  be  sued 
alone. 

Persons  severally  liable  upon  the  same  obligation  or  instru- 
ment, including  the  parties  to  bills  of  exchange  and  promissory 
notes,  and  sureties  on  the  same  or  separate  instruments,  may 
all  or  any  of  them  be  included  in  the  same  action,  at  the  option 
of  the  plaintiff". 

All  persons  holding  as  tenants  in  common,  joint  tenants,  or 
co-parceners,  or  any  number  less  than  all,  may  jointly  or  sever- 
ally commence  or  defend  any  civil  action  or  pi'oceeding  for  the 
enforcement  or  protection  of  the  rights  of  such  party. 


CHAPTER  IV. 

PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

Actions  for  the  followincr  causes  must  lie  tried  in  the  coun- 
ty  in  which  the  subject  of  the  action  or  some  part  thereof  is 
situated,  subject  to  the  power  of  the  Court  to  change  the  place 
of  trial  as  provided  in  the  code : 

1.  For  the  recovery  of  real  property,  or  of  an  estate,  or 
interest  therein,  or  for  the  determination,  in  any  form,  of  .such 
right  or  interest,  and  for  injuries  to  real  property. 

2.  For  the  partition  of  real  property. 

3.  For  the  foreclosure  of  all  liens  and  mortgages  on  real 
property. 

Where  the  real  property  is  .situated  partly  in  one  county 
and  partly  in  another,  the  plaintiff'  may  select  either  of  the 
counties,  and  the  county  so  selected  is  the  proper  county  for 
the  trial  of  such  action. 


ff'lf 


"I 
15 'f 


US 


Idaho. 


[Part  6 


il  *■ 


Actions  for  the  following  causes  must  be  tried  in  the  coun- 
ty where  the  cause  or  some  part  thereof  arose : 

1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by 
statute,  except  that  when  it  is  imposed  for  an  offense  commit- 
ted on  a  lake,  river,  or  other  stream  of  water  situated  in  two 
or  more  counties,  the  action  may  be  brought  in  any  county 
bordering  on  such  lake,  river,  or  .stream,  and  opposite  to  the 
place  where  the  offense  was  committed. 

2.  Against  a  public  officer  or  person  especially  appointed 
to  execute  his  duties,  for  an  act  done  by  him  in  virtue  of  his 
office,  or  against  a  person  who,  by  his  connnand,  or  in  his  aid, 
does  anything  touching  the  duties  of  such  officer. 

An  action  against  a  county  may  be  commerced  and  Lried 
in  such  county,  unless  such  action  is  brought  by  a  county,  in 
which  case  it  may  be  commenced  and  tried  in  any  county  not 
a  party  thereto. 

All  other  actions  must  be  tried  in  the  county  in  which  the 
defendants,  or  some  of  them,  re.side  at  the  commencement  of 
the  action;  or  if  none  of  the  defendants  reside  in  the  Territory, 
or  if  residing  in  this  Territory,  the  county  in  which  they  reside 
is  unknown  to  the  plaintiff,  the  same  may  be  tried  in  any 
county  which  the  plaintiff  may  designate  in  his  complaint ;  and 
if  the  defendant  is  about  to  depart  from  the  Territory,  such 
action  may  be  tried  in  any  county  where  either  of  the  parties 
reside,  or  where  service  is  had. 

If  the  county  in  which  the  action  is  commenced  is  not  the 
proper  county  for  the  trial  thereof,  the  action  may,  notwith- 
standing, be  tried  therein,  unless  the  defendant,  at  the  time  he 
appears  and  answers  or  demurs,  files  an  affidavit  of  merits, 
and  demands  in  writing  that  the  trial  be  had  in  the  proper 
county. 

The  place  of  trial  may  be  changed  in  the  following  cases: 

1.  When  the  county  designated  in  the  complaint  is  not 
the  proper  county. 

2.  When  there  is  reason  to  believe  that  an  impartial  trial 
cannot  be  had  therein. 


Chap.  4] 


Idaho. 


213 


eside 
any 
;  and 
,  such 
larties 


3.  Wlien  the  conveyance  of  witnesses  and  the  ends  of 
justice  would  be  promoted  by  the  change.       •  - 

4.  When  from  any  cause  the  Judge  is  disqualified  for 
acting. 

Of  proceedings  in  civil  actions  in  Probate  Courts. 

The  process,  provisional  remedies,  supplementary  proceed- 
ings, and  the  rules  of  practice  and  pleading  in  the  Probate 
Court,  when  the  debt  or  sum  claimed  does  not  exceed  three 
hundred  dollars,  shall  be  the  same  as  Justices'  Courts;  in  all 
other  cases  within  its  civil  jurisdiction,  the  same  as  in  the 
District  Courts,  except  when  other  provision  is  made  by  the 
code,  jurisdiction  of  the  Probate  Court  extends  throughout  the 
county. 

Place  of  trial  in  Justices'  Courts. 

Actions  in  Justices'  Courts  must  be  commenced,  and  sub- 
ject to  the  right  of  changing  the  place  of  trial  (as  in  this  chap- 
ter provided)  must  be  tried: 

1.  If  there  is  no  Justice's  Court  for  the  precinct  or  city  in 
which  the  defendant  resides:  in  any  city  or  precinct  of  the 
county  in  which  he  resides. 

2.  When  two  or  more  persons  are  jointly,  or  jointly  and 
severally  bound  in  any  debt  or  contract,  or  otherwise  jointly 
liable  in  the  same  action,  and  reside  in  different  precincts,  or 
different  cities  of  the  same  county,  or  in  different  counties ; 
ill  the  precinct  or  city  in  which  any  of  the  persons  lia^  'c  may 
reside. 

3.  In  cases  of  injury  to  person  or  property;  in  the  pre- 
cinct or  city  where  the  injury  was  committed,  or  where  the 
defendant  resides. 

4.  If  for  the  recovery  of  personal  property,  or  the  value 
thereof,  or  damages  for  taking  or  detaining  the  same:  in  the 
precinct  or  city  in  which  the  property  may  be  found,  or  in 
which  the  property  was  taken,  or  in  which  the  defendant 
resides. 

5.  When  the  defendant  is  a  non-resident  of  the  county: 
in  any  precinct  or  city  wherein  he  may  be  found. 


n 


[i    :\l 


ifl'r 


i;;ii 


214 


Idaho. 


[Part  6 


6.  When  the  defendant  is  a  non-resident  of  the  Territory; 
in  any  precinct  or  city  in  the  Territory. 

7.  When  a  person  has  contracted  to  perform  an  oblif,'a- 
tion  at  a  particular  phice  and  resitles  in  another  county,  pre- 
cinct or  city:  in  the  precinct  or  city  in  which  such  obligation 
is  to  be  performed  or  in  which  he  resides. 

8.  When  the  parties  voluntarily  appear  and  plead  with- 
out summons:  in  any  precinct  or  city  in  the  Territory. 

9.  In  all  other  cases:  in  the  precinct  or  city  in  which  the 
defendant  resides. 

The  Court  may  at  any  time  before  the  trial,  on  motion, 
change  the  place  of  trial  in  the  following  cases: 

1.  When  it  appears  to  the  satisfaction  of  the  Justice  i>e- 
fore  whom  the  action  is  pending,  by  affidavit  of  either  p 
that  such  Justice  is  a  material  witness  for  either  party. 

2.  When  either  party  makes  and  tiles  an  affidavit  that  he 
believes  that  he  cannot  have  a  fair  and  impartial  trial  before 
such  Justice  by  reason  of  the  interest,  prejudice  or  bias  of  the 
Justice. 

8.  When,  from  any  cause,  the  Justice  is  disqualitied  from 
acting. 


CHAPTER  V. 
COMMENCEMENT  OP  CIVIL  ACTIONS,  ETC. 

Civil  actions  in  the  Courts  of  this  Territory  are  commenced 
by  filing  a  complaint. 

The  plaintiff  may  have  summons  issued  any  time  within 
one  year  after  the  complaint  is  filed  with  the  Clerk  or  Justice. 

In  the  District  Courts  the  defendant  is  allowed  ten  days 
after  the  service  of  summons  and  complaint  to  appear  and  an- 
swer the  complaint,  where  service  is  made  within  the  county 
in  which  the  action  is  brought;  twenty  days  if  served  out  of 
the  county,  but  in  the  district  in  which  the  action  is  brought, 
and  forty  days  if  served  elsewliere. 


Chap.  5] 


Idaho. 


i>15 


In  the  District  Courts  tho  summons  and  copy  of  comjihiint 
may  be  .served  by  the  Sheriff  of  the  county  whore  defeuthint 
may  bo  found,  or  by  any  otlier  person  over  the  age  of  eighteen, 
not  a  party  to  tlie  action. 

In  Justices'  Courts  summons  for  aj)pt'Hrance  is  as  follows: 

1.  If  an  order  of  arrest  is  endorsed  upon  the  summons 
fortliwith. 

2.  In  all  other  cases,  not  less  than  three  nor  more  than 
twenty  days  from  date. 

On  Whom  Summons  to  be  Served. 

1.  If  the  suit  is  against  a  corpoi'a'  on  formed  under  the 
laws  of  this  Territory:  the  president  nv  (jther  head  of  the  cor- 
poration, secretary,  cashier,  or  managing  agent  thereof. 

2.  If  a  suit  is  against  a  foreign  corporation,  or  a  non- 
resident joint  stock  company  or  a.ssociation,  doing  Inisiness  and 
having  a  managing  or  business  agent,  cashier  or  secretary 
within  this  Territory,  to  such  agent,  cashier  or  secretary,  or 
to  any  station,  ticket,  or  other  agent  of  such  corporation,  trans- 
acting business  therefor  in  the  county  where  the  action  is  com- 
menced, and  if  there  is  no  such  agent  in  said  county,  then  ser- 
vice may  be  had  upon  any  such  agent  in  any  other  county. 

'i.  If  against  a  minor  under  the  age  of  fourteen  years,  re- 
siding within  this  Territory:  such  minor  personally,  and  also  his 
father,  mother,  or  guardian;  or  if  there  be  none  within  this 
Territory,  then  any  person  having  the  care  or  control  of  such 
nnnor,  or  with  whom  he  resides,  or  in  whose  service  he  is  em- 
ployed. 

4.  If  against  a  person,  residing  within  this  Territory,  who 
has  been  judicially  declared  to  be  of  unsound  mind,  or  incap- 
able of  conductiuir  his  own  affairs,  and  for  whom  a  guardian 
has  been  appointed:  such  person,  ami  also  his  guardian. 

a.  If  against  a  county,  city  or  town:  the  president  of  the 
Board  of  Supervisors,  president  of  the  council,  or  trustees,  or 
other  head  of  the  legislative  department  thereof. 

0.  In  all  other  cases  the  defendant  nuist  be  .served 
personally. 


I  m 


1 


tf. 


Idaho. 


[Part  6 


Service  by  Publication. 

When  tliv-  person  on  whom  tlie  service  is  to  l)e  made  resides 
out  of  the  Tciritory,  or  has  departed  from  the  Territory,  or  can- 
not, after  due  diligence,  be  found  within  the  Territory,  or  con- 
ceals himself  to  avoid  service,  or  is  a  foreign  corporation  hav- 
ing no  managing  or  business  agent,  cashier,  or  secretary  within 
the  Territory,  and  the  fact  appears  by  affidavit  to  the  satisfac- 
tion of  the  Court,  or  a  Judge  thereof,  or  a  Probate  Judge,  and 
it  also  appears  by  such  affidavit,  or  by  the  verified  complaint 
on  file,  that  a  cause  of  action  exists  against  the  defendant  in 
respect  to  whom  the  service  is  to  be  made,  or  that  he  is  a 
necessary  or  proper  party  to  the  action,  such  Court  or  Judge 
may  make  an  order  that  the  service  be  made  by  the  publica- 
tion of  the  summons. 

In  Justice  Court  actions  the  summons  cannot  be  .served  out 
of  the  county  of  the  Justice  before  whom  the  action  is  brought, 
except  when  the  action  is  brought  upon  a  joint  contract  or 
obligation  of  two  or  more  persons  who  reside  in  different  coun- 
ties, and  the  summons  ha.s  been  served  upon  the  defendant  res- 
ident of  the  county,  in  which  case  the  summons  may  be  served 
upon  the  other  defendants  out  of  the  county;  and  except  also 
when  an  action  is  brought  against  a  party  who  has  contracted 
to  perform  an  obligation  at  a  particular  place,  and  resides  in  a 
different  county,  in  which  case  sunnnons  may  be  .served  in  the 
county  where  he  resides;  and  except  also,  where  an  action  is 
brou<.'ht  for  injury  to  person  or  property,  and  the  defendant 
resides  in  a  different  count}*,  in  which  case  sunnnons  may  be 
served  in  the  county  where  the  defendant  resides. 

The  Justice  may,  within  a  year  from  the  date  of  filing  the 
complaint,  issue  as  many  alias  summons  as  may  be  demanded 
by  the  plaintiff. 

The  summons  in  a  Justice's  Court  action  may  be  scrvcvl  by 
a  Sheriff  or  Constable  of  any  of  the  counties  of  this  Territory, 
or  by  any  male  resident  over  the  age  of  twenty-one  years,  not 
a  party  to  the  suit,  and  within  the  county  where  the  action  is 
brought,  or  it  may  be  served  by  publication.  When  a  sum- 
mons i."^  issued  by  a  Justice  of  the  Peace  for  service  out  of  the 


Chap,  o] 


Idaho. 


217 


county  in  which  it  was  issued,  the  summons  sliall  have  attached 
to  it  a  certificate,  under  seal  by  the  Clerk  of  the  District  Court 
of  such  county,  to  the  effect  that  the  person  issuing  the  same 
was  an  actiny  Justice  of  the  Peace  at  the  date  of  the  summons. 


CHAPTER  VI. 

PLEADINGS  IN  CIVIL  ACTIONS. 

The  pleadings  are  the  formal  allegations  by  the  parties  of 
their  respective  claims  and  defenses  for  the  judgment  of  the 
Court. 

The  only  pleadings  allowed  on  the  part  of  the  plaintiff  are : 

1.  The  complaint. 

2.  The  demurrer  to  the  answer. 
And  on  the  part  of  the  defendant : 

1.  The  demurrer  to  the  complaint. 

2.  The  answer. 


CHAPTER  VII. 
ATTACHMENTS. 

The  plaintiff  at  the  time  of  issuing  he  summons,  or  at  anj'" 
time  afterwards,  may  have  the  prop-ity  of  the  defendant  at- 
tached, as  security  for  the  satisfaction  of  any  judgment  that 
may  be  recovered,  unless  the  defendant  gives  security  to  pay 
such  judgment,  in  the  following  cases: 

1.  In  an  action  upon  a  judgment,  or  upon  contract,  ex- 
press or  implied,  for  the  direct  payment  of  money,  where  the 
contract  Is  not  secured  by  any  mortgage  or  lien  uj)on  real  or 
personal  property,  or  any  pledge  of  personal  property,  or,  if 
origina'iy  so  secured,  such  seciirity  has.  without  any  act  of 
plaintiff,  or  the  person  to  whom  the  security  was  given,  be- 
come valueless. 


w 


218 


Idaho. 


[Part  6 


If. 


^M 


ii 


2.  In  an  action  upon  a  judgment  or  upon  contract  ex- 
press or  implied  against  a  defendant  not  residing  in  this 
Territory. 

Affidavit  for  attachment  must  set  forth : 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specify- 
ing the  amount  of  such  indebtedness  over  and  above  all  legal 
set-offs  or  counter  claims),  and  whether  upon  a  judgment  or 
upon  a  contract  for  the  direct  payment  of  money,  and  that 
the  payment  of  the  same  has  not  been  secured  by  any  mort- 
gage or  lien  upon  real  or  personal  property,  or  any  pledge 
of  personal  property,  or,  if  originally  secured,  that  such  secur- 
ity has,  without  any  act  of  the  plaintiff,  or  the  person  to 
whom  the  security  was  given,  become  valueless;  or, 

2.  That  the  defendant  is  indebted  to  the  plaintiff  (specify- 
ing such  indebtedness  over  and  above  all  legal  set-offs  or  coun- 
ter claims),  and  that  the  defendant  is  a  non-resident  of  the 
Territory;  and. 

That  the  attachment  is  not  sought,  and  the  action  not  pro- 
secuted, to  hinder,  delay  or  defraud  any  creditor  of  the  de- 
fendant. ' 

Before  an  attachment  can  issue,  plaintif!'  must  file  an  un- 
dertaking in  District  Court  in  a  sum  not  le^s  than  S200,  and 
not  to  exceed  the  amount  claimed.  In  Probate  and  Justices' 
Courts,  in  a  sum  not  less  than  SlOO,  and  not  to  exceed  the 
amount  of  claim. 


CHAPTER  VIII. 

CLAIM  AND  DELIVERY,  ETC. 


Claim  and  delivery  of  personal  property. 

Arrest  and  bail. 

Injunctions 

Judgment  and  judgment  liens. 

Ju<lgment  upon  failun-  to  answvjr. 

tfudgment  by  confession. 


Chap.  8] 


Idaho. 


219 


Judgment  on  proceedings  without  action  by  submission  of 
a  controversy. 

Judgment  after  verdict. 

Proceedings  against  joint  debtors. 

Proceedings  on  offer  to  compromise. 

Judgment  in  replevin. 

Judgment  lien. 

Our  statutes  concerning  the  above  subjects  are  similar  to 
California. 


m 

m 


CHAPTER  IX. 

EXEMPTIONS  FROM  EXECUTION. 

In  addition  to  the  homestead  exempted  by  the  Civil  Code, 
the  following  property  belonging  to  an  .ntual  resident  of  the 
Territory,  is  exempt  from  execution,  except  upon  a  j  udgment 
recovered  for  its  price,  or  upon  a  i       f-jratre  thereon. 

1.  Chairs,  tables,  desks  and  i.  to  the  value  of  two 
hundred  dollars,  belonging  to  judgment  del)tor 

2.  Necessary  household,  table  and  kiteiiun  furniture  be- 
longing to  judgment  debtor,  including  one  sewing  machine  in 
actual  use  in  a  family,  or  belonging  to  a  woman;  stoves,  stove- 
pipe and  stove  furniture,  beds,  bedding  and  bedsteads,  not  ex- 
ceeding in  value  three  hundred  dollars;  wearing  apparc!  hang- 
ing pictures,  oil  paintings  and  drawings,  drawn  or  painted  by 
any  member  of  the  family,  and  family  portraits  and  their 
necessary  frames;  provisions  actually  provided  for  indivi'l"  il 
or  family  use  suHicient  for  tiiree  months;  two  cows  with  tlieir 
suckling  calves,  and  two  hogs  with  their  suckling  pigs. 

3.  The  farming  utensils,  or  implements  of  husbandry  of  a 
farmer,  not  exceeding  in  value  the  sum  of  tliree  hundred  dol- 
lars; also,  two  oxen  or  two  horses,  or  two  mules,  and  their  har- 
ness, one  cart  or  wagon,  and  food  for  such  oxen,  horses  or  mules 
for  one  month ;  also,  a  water  right  not  to  exceed  one  hundred  and 
sixty  inches  of  water,  used  for  the  irrigation  of  lands  actually 
cultivated  by  him;  also,  all  seed,  grain  or  vegetables  actually 


220 


Idaho. 


Vi 


[Part  G 


provided,  reserved,  or  on  hand  for  the  purpose  of  planting  or 
sowing  at  any  time  within  the  ensuing  six  months,  not  exceed- 
insr  in  value  the  sum  of  two  hundred  dollars. 

4.  Tools  or  implements  of  a  mechanic  or  artisan  necessary 
to  carry  on  his  trade,  not  exceeding  in  value  the  sum  of  five 
hundred  dollars;  the  notarial  seal  and  records  of  a  notary  pub- 
lic; the  instruments  and  chests  of  a  surgeon,  physician,  sur- 
veyor and  dentist,  necessary  to  the  exercise  of  their  profession, 
with  their  scientific  and  professional  libraries;  the  law  profes- 
sional libraries  and  office  furniture  of  attorneys,  counsellors 
and  judges,  and  the  libraries  of  ministers  of  the  gospel. 

5.  The  cabin  or  dwelling  of  a  mi*^  ar,  not  exceeding  in 
value  the  sum  of  five  hundred  dollars;  also  his  sluices,  pipes, 
hose,  windiofis,  derrick,  cars,  pumps  and  tools,  not  exceeding  in 
value  two  hundred  dollars;  also  one  saddle  animal  and  one 
pack  animal,  together  with  their  saddles  and  equipments  be- 
longing to  a  miner  actually  engaged  in  prospecting,  not  exceed- 
inj;  in  value  two  hundred  and  fiftv  dollars. 

G.  Two  oxen,  two  horses,  or  two  mules,  and  their  harness ; 
and  one  cart,  wagon,  dray  or  truck,  by  the  use  of  which  a 
cartman,  drayman,  truckmen,  huckster,  peddler  hackman, 
teamster  or  other  laborer,  habitually  earns  his  living;  and  one 
horse  with  vehicle  and  harness,  or  other  equipments  used  by 
a  physician,  surgeon,  or  mini.>^ter  of  the  gospel,  in  making  his 
professional  visits,  with  food  for  such  oxen,  horses  or  mules, 
for  one  month. 

7.  The  earnings  of  the  judgment  debtor  for  his  personal 
services  rendered  at  any  time  witliin  thirty  days  next  preced- 
ing the  levy  of  execution  or  levy  of  attachment,  when  it 
appears  by  the  debtor's  affidavit  or  otherwise,  that  such  earn- 
ings are  necessary  for  the  use  of  his  family  residing  in  this 
Territory,  supported  wholly  or  in  part '  y  his  labor. 

8.  The  shares  held  by  a  member  of  a  homestead  associ- 
ation duly  incorporated,  not  exceedinu  in  value  one  thousand 
dollars,  if  the  person  holding  the  slirnc  is  not  the  owner  of  a 
homestead  under  the  laws  of  this  'J'ciritory. 

9.  All  moneys,  benefits,  privileges  or  immunities  accruing, 
or  in  any  manner  growing  out  of  any  life  insurance  on  the  life 


Chap.  9] 


Idaho. 


of  the  debtor,  to  an  amount  represented  by  an  annual  prem- 
ium, not  exceeding  two  hundred  and  fifty  dollars. 

10.  All  fire  engines,  hooks  and  ladders,  with  the  carts, 
trucks  and  carriages,  hose,  buckets,  implements  and  apparatus 
thereto  appertaining,  and  all  furniture  and  uniforms  of  any 
fire  company  or  department  organized  under  any  law  of  this 
Territory. 

11.  All  arms,  uniforms  and  accoutrements  required  by 
law  to  be  kept  by  any  person;  also  one  gun. 

12.  All  court  houses,  jails,  public  offices  and  buildings, 
school  house,  lots,  grounds  and  personal  property  appertaining 
thereto;  the  fixtures,  furniture,  books,  papers,  and  appurten- 
ances belonging  and  pertaining  to  the  court  house,  jail  and 
public  offices  belonging  to  any  county  of  this  Territory,  or  for 
the  use  of  schools,  and  all  cemeteries,  public  s([uares,  parks  and 
places,  public  buildings,  town  halls,  markets,  buildings  for  the 
use  of  fire  departments  and  military  organizations,  and  the  lots 
and  grounds  thereto  belonging  and  appertaining,  owned  or 
held  by  any  town  or  incorporated  city,  or  dedicated  by  such 
town  or  city  to  health,  ornament,  or  public  use,  or  for  the  use 
of  any  fire  or  military  company  organized  under  the  laws  of 
this  Territory.  No  article  or  species  of  property  mentioned  in 
this  section  is  exempt  from  execution  issued  upon  a  judgment 
recovered  for  its  price,  or  upon  a  mortgage  thereon. 

For  exemption  of  homesteads  so"  "Homesteads." 


CHAPTER  X. 

REDEMPTION,  ETC. 

By  whom  real  property  may  be  redeemed  and  when. 
Proceedings  supplementary  to  execution. 
Costs. 

Security  for  costs. 

Statute   regardincr   each   of    the    above    is    same    as 
Culifornin. 


in 


IW 


w 


I 


ti:{: 


222  Idaho.  [Part  G 

CHAPTER  XI. 

APPEALS. 

Appeals  to  Supreme  Court  from  a  District  Court. 
Within  what  time  appeals  may  be  taken: 

1.  Fiom  a  final  judgment  in  an  action  or  special  proceed- 
ing commenced  in  the  Court  in  which  the  same  is  rendereci, 
within  one  year  after  the  entry  of  judgmeni^.  But  an  excep- 
tion to  the  decision  or  verdict,  on  the  ground  that  it  is  not  sup- 
ported by  the  evidence,  cannot  be  reviewed  on  an  appeal  from 
the  judgment,  unless  the  appeal  is  taken  within  sixty  days 
after  the  rendition  of  the  judgment. 

2.  From  a  judgment  rendered  on  an  appeal  from  an  in- 
ferior Court,  within  ninety  days  after  the  entry  of  such 
judgment. 

3.  From  an  order  granting  or  refusing  a  new  trial;  from 
an  order  granting  or  dissolving  an  injunction;  from  an  order 
refusing  to  grant  or  dissolve  an  injunction;  from  an  order  dis- 
solving or  refusing  to  dissolve  an  attachment;  from  an  order 
granting  or  refusing  to  grant  a  change  of  the  place  of  trial ; 
from  any  special  order  made  after  the  final  judgment,  and  from 
an  interlocutory  judgment  in  actions  for  partition  of  real  prop- 
erty, within  sixty  days  after  the  order  or  interlocutory  judg- 
ment is  made  and  entered  in  the  minutes  of  the  Court,  or  filed 
with  the  clerk. 

An  appeal  is  taken  by  filing  with  the  clerk  of  the  Court  in 
which  the  judgment  or  order  appealed  from  is  entered,  a  notic;? 
stating  the  appeal  from  the  same,  or  some  specific  part  thereof, 
and  serving  a  .similar  notice  on  the  adverse  party  or  his  attor- 
ney. The  order  of  service  is  immaterial,  but  the  appeal  is  in- 
eff^ectual  for  any  purpose  unless  within  five  days  after  service 
of  the  notice  of  appeal,  an  undertaking  be  filed,  or  a  deposit 
of  money  be  made  with  the  clerk,  as  hereinafter  provide<l,  or 
the  undertaking  be  waived  l)y  the  adverse  party  in  writing. 

The  undertaking  on  appeal  must  be  in  writing,  and  must 
be   executed  on  the  part  of   the   appellant  by  at   least  two 


Chap.  11] 


Idaho 


223 


sureties,  to  the  effect  that  the  appellant  will  pay  all  damages 
and  costs  which  mav  be  awarded  ajjainst  him  on  the 
appeal,  or  on  a  dismissal  thereof,  not  exceeding  three  hundred 
dollars;  or  that  sum  must  be  deposited  with  the  clerk  with 
whom  the  judgment  or  order  was  entered,  to  abide  the  event  of 
the  appeal. 

If  the  appeal  be  from  a  judgment  or  order  directing  the 
payment  of  money,  it  does  not  stay  the  execution  of  the  judg- 
ment or  order,  unless  a  written  undertaking  be  executed  on 
the  part  of  the  appellant,  by  two  or  more  sureties,  to  the  effect 
that  they  are  bound  in  double  the  amount  named  in  the  judg- 
ment or  order;  that  if  the  judgment  or  order  appealed  from,  or 
any  part  thereof,  be  afhrmed,  or  the  appeal  be  dismissed,  the 
appellant  will  pay  the  amount  directed  to  be  paid  by  the  judg- 
ment or  orde.,  or  the  part  of  such  amount  as  to  which  the 
judgment  or  order  is  affirmed,  if  affirmed  only  in  part,  and  all 
damages  and  costs  which  may  be  awarded  against  the  appellant 
upon  the  appeal;  and  that  if  the  appellant  does  not  make  such 
payment  within  thirty  days  after  the  filing  of  the  remittitur 
from  the  Supreme  Court,  in  the  Court  from  which  the  appeal 
is  taken,  judgment  may  be  entered  on  motion  of  the  respond- 
ent in  his  favor  against  the  sureties,  for  such  amount,  together 
with  the  interest  that  may  be  due  thereon,  and  the  damages 
and  costs  which  may  be  awarded  against  the  appellant  upon 
the  appeal.  If  the  judgment  or  order  appealed  from  be  for  a 
greater  amount  than  two  thousand  dollars,  and  the  sureties  do 
not  state  in  their  affidavits  of  justification  accompanying  the 
undertaking,  that  they  are  each  worth  the  sum  specified  in  the 
undertaking,  the  stipulation  may  be  that  the  judgment  to  be 
entered  against  the  sureties  shall  be  for  such  amounts  only  as 
in  their  affidavits  they  may  state  that  the}'  are  severally  worth, 
and  judgment  may  be  entered  against  the  sureties  by  the  Court 
from  which  the  appeal  is  taken,  pursuant  to  the  stipulations 
therein  designated.  When  the  judgment  or  order  appealed 
from  is  made  payable  in  a  specifit'd  kind  of  money  or  currency, 
the  judgment  entered  against  the  sureties  upon  the  undertaking 
must  be  made  payable  in  the  same  kind  of  money  or  currency. 


f 


224 


Idaho. 


[Part  6 


When  an  appeal  is  perfected,  it  stays  all  further  proceed- 
ings in  the  Court  below,  upon  the  judgment  or  order  appealed 
from,  or  upon  the  matters  embraced  therein,  and  releases  from 
levy  property  which  has  been  levied  upon  under  execution 
issued  upon  such  judgment. 

The  adverse  party  may  except  to  the  sufficiency  of  the 
sureties  to  the  undertakings  on  appeal. 

The  foregoing  provisions  in  regard  to  appeals  do  not  apply 
to  appeals  to  the  County  Court  from  Justices'  or  Police  Courts. 


I- 


Appeals  from  Probate  Courts  to  District  Courts  in 

Probate  Matters. 

An  appeal  may  be  taken  to  the  District  Court  of  the  county 
from  a  judgment  or  order  of  the  Probate  Court  in  probate 
matters:  .  :  .         ■ 

1.  Granting  or  refusing,  or  revoking  letters  testamentary, 
or  of  administration,  or  of  guardianship. 

2.  Admitting,  or  refusing  to  admit,  a  will  to  probate. 

3.  Against  or  in  favor  of  the  validity  of  a  will,  or  revoking 
the  probate  thereof. 

4.  Against  or  in  favor  of  setting  apart  property,  or  mak- 
ing an  allowance  for  a  widow  or  child. 

5.  Against  or  in  favor  of  directing  the  partition,  sale,  or 
conveyance  of  real  property. 

6.  Settling  an  account  of  an  executor,  or  administrator,  or 
guardian. 

7.  Refusing,  allowing,  or  directing  the  distribution  or  par- 
tition of  an  estate,  or  any  part  thereof,  or  the  payment  of  a 
debt,  claim,  legacy,  or  distributive  share. 

8.  Confirming  a  report  of  an  appraiser  setting  apart  the 
horn  "stead. 


Appeals  from  Probate  and  Justices'  Courts  to 
District  Courts. 

Any  party  dissatisfied  with  a  judgment  rendered  in  a  civil 
action  in  a  Probate  or  Justice's  Court  may  appeal  therefrom  to 


Chap.  11] 


Idaho. 


225 


the  District  Court  of  the  county,  at  any  time  within  thirty 
days  after  the  rendition  of  the  judgment. 

Parties  appealing  on  (questions  of  hiw  alone,  must  prepare  a 
statement  for  the  Justice  or  Judge.  When  the  appeal  is  taken 
on  questions  of  fact,  or  questions  of  both  law  and  fact,  no  state- 
ment neeil  be  made,  but  the  action  must  be  tried  anew  in  the 
District  Court. 

An  appeal  from  a  Justice's  or  Probate  Court  is  not  effectual 
for  any  purpose,  unless  an  undertaking  be  tiled,  with  two  or 
more  sureties,  in  the  sum  of  one  hundred  dollars,  for  the  pay- 
ment of  the  costs  on  the  appeal ;  or  if  a  stay  of  the  proceedings 
be  claimed,  in  a  sum  e(iual  to  twice  the  amount  of  the  judg- 
ment, including  costs,  when  the  judgment  is  for  the  payment 
of  money;  or  twice  the  value  of  the  property,  including  costs, 
when  the  judgment  is  for  the  recovery  of  specific  personal 
property;  and  must  be  conditioned,  when  the  action  is  for  the 
acovery  of  money,  that  the  appellant  will  pay  the  amount  of 
:he  judguKjnt  appealed  from,  and  all  costs,  if  the  appeal  be 
withdrawn  or  dismissed,  or  the  amount  of  any  judgment  and 
all  costs  that  may  be  recovered  against  him  in  the  District 
Court.  When  the  action  is  for  the  recovery  of  specific  personal 
property,  the  undertaking  must  be  conditioned  that  the  appel- 
lant will  pay  the  judgment  and  costs  appealed  from,  and  obey 
the  order  of  the  Court  made  therein,  if  the  appeal  be  withdrawn 
or  dismissed,  or  any  judgment  and  costs  that  may  be  recovered 
against  him  in  said  action  in  the  District  Court,  and  will  obey 
any  order  made  by  the  Court  therein.  A  deposit  of  the  amount 
of  the  judgment,  including  all  costs,  appealed  from,  or  of  the 
value  of  the  property,  including  all  costs,  in  actions  for  the  re- 
covery of  specific  personal  property,  with  the  Justice  or  Judge, 
is  equivalent  to  the  filing  of  the  undertaking.  The  adverse 
party  may  except  to  the  sufficiency  of  the  sureties  within  five 
days  after  the  filing  of  the  undertaking;  and  unless  they  or 
other  sureties  justify  before  the  Justice  or  Judge  before  whom 
the  appeal  is  taken,  within  five  days  thereafter,  upon  notice  to 
the  adverse  party,  to  the  amounts  stated  in  their  affidavits, 


i  U 


226 


Idaho. 


[Part  G 


the  appeal  must  be  reganlcd  as  if  no  such   undertaking  had 
been  given. 

On  filing  the  above  undertaking,  execution  must  be  stayed. 
For  a  failure  to  prosecute  an  appeal,  or  unnecessary  delay  in 
bringing  it  to  a  hearing,  the  District  Court,  after  notice,  may 
order  the  appeal  to  be  dismissed. 


CHAPTER   XII. 


LIENS. 

Of  the  enforcement  of  liens. 

Every  person  performing  labor  upon,  or  furnishing  mater- 
ials to  be  used  in  the  construction,  alteration,  or  repair  of  any 
mining  claim,  building,  wharf,  bridge,  ditch,  flume,  tunnel, 
fence,  machinery,  railroad,  wagon-road,  ac[ueduct  to  create 
hydraulic  power,  or  any  other  structure,  or  who  performs  labor 
in  any  mining  claim,  has  a  lien  upon  the  same  for  his  work  or 
labor  done  or  materials  furnished  by  each,  respectively,  wheth- 
er done  or  furnished  at  the  instance  of  the  owner  of  the  build- 
ing or  other  improvement,  or  his  agent,  but  the  aggregate 
amount  of  such  liens  must  not  exceed  the  amount  which  the 
owner  would  be  otherwise  liable  for. 

Any  sub-contractor,  material-man,  laborer,  or  other  person 
performing  labor  or  fui-nishing  materials  for  a  contractor  who 
is  entitled  to  a  lien  under  the  provisions  above  stated,  may,  at 
any  time,  serve  upon  the  owner  or  his  agent,  or  the  person  em- 
ploying the  contractor,  written  notice  of  the  amount  due  him 
for  such  labor  or  materials,  and  such  sub-contractor,  material- 
man, laborer  or  other  person,  may  have  a  lien  for  such  amount, 
but  not  exceeding  the  amount  then  or  thereafter  due  such 
contractor  from  such  owner,  or  person  employing  him,  under 
the  contract.  And  any  person  furnishing  materials,  or  per- 
forming labor  for  a  sub-contractor,  may  by  like  notice  to  the 
contractor  be  subrogated  to  the  rights  of  such  sub-contractor. 


[Part  G 
iiig  had 

c  stayed, 
delay  in 
tice,  may 


Cliap.  12] 


JlJAHO. 


227 


ncr  mater- 
ir  of  any 
le,  tunnel, 
to    create 
Drins  labor 
IS  work  or 
ly,  whcth- 
the  build- 
aggregate 
wliiui  the 

lor  person 

•actor  who 

1,  may,  at 

jerson  em- 

t  due  him 

matcrial- 
ch  amount, 

due  such 
lim,  under 
Is,  or  per- 
tice  to  the 
•contractor. 


Any  person  who,  at  the  reiiuest  of  the  owner  of  any  lot  in 
an}'  incorporated  city  or  town,  grailes,  fills  in,  or  otherwise 
improves  the  same,  or  the  street  in  front  of,  or  adjoining  the 
same,  has  a  lien  upon  such  lot  for  his  work  done  and  materials 
furnished. 

The  land  upon  which  any  building,  imj)rovement,  or  struc- 
ture is  constructed,  together  with  a  convenient  space  about  the 
same,  or  so  much  as  may  be  recjuired  for  the  convenient  use  and 
occupation  thereof,  to  be  determined  by  the  Court  on  render- 
ing judgment,  is  also  subject  to  the  lien,  if,  at  the  commence- 
ment of  the  work,  or  of  the  furnishing  of  the  materials  for  the 
same,  the  land  belonged  to  the  person  who  caused  said  build- 
ing, impro\'ement,  or  structure  to  be  constructed,  altered,  or 
repaired;  but  if  such  person  owned  less  than  a  fee  simple  es- 
tate in  such  land,  then  only  his  intersst  therein  is  subject  to 
sucli  lien. 

Such  liens  are  preferred  to  any  lien,  mortgage  or  other  in- 
cumbrance wliich  may  have  attached  subse(|uent  to  the  time 
when  the  building,  ijnprovement  or  structure  was  commenced, 
work  done,  or  materials  were  commenced  to  be  furnished  ;  also, 
to  any  lien,  mortgage  or  other  incumbrance,  of  which  the  lien- 
holder  had  no  notice,  and  which  was  unrecorded  at  the  time 
the  building,  improvement  or  .structure  was  connnencod,  work 
done,  or  the  materials  were  conmienced  to  be  furnished. 

Every  original  contractor,  within  sixty  days  after  the  com- 
pletion of  his  contract,  and  every  person,  save  the  original 
contractor,  claiming  the  benefit  of  this  chapter,  must,  within 
tliirty  days  after  the  completion  of  any  building,  improve- 
ment or  structure,  or  after  the  completion  of  the  alteration  or 
repair  thereof,  or  the  performance  of  any  labor  in  a  mining 
claim,  file  for  record  with  the  county  recorder  of  the  county 
in  which  such  property,  or  .some  part  thereof,  is  situated,  a 
claim  containing  a  statement  of  his  demand,  after  deducting 
all  just  credits  and  ott-.sets,  with  tlie  name  of  the  owner  or  re- 
puted owner,  if  known,  and  also  the  name  of  the  person  by 
wiioin  he  was  employed,  or  to  whom  he  furnished  the  mater- 
ials, with  a  statement  of  the  terms,  time  given,  and  conditions 
of  his  contrav-^t,  and  also   a  description  of  the  property  to   be 


m 


f?^"'  ^f 


228 


Idaho. 


[Part  6 


'I  ■. 


mm 

BH"" 


fl 


charged  witli  the  lien,  sufficient  for  identification,  wliich  claim 
must  be  voritied  by  the  oath  of  himself  or  of  some  otlier  person. 

The  lien  does  not  bind  any  building,  mining  claim,  improve- 
ment or  structure,  for  a  longer  neriod  than  ninety  days  after 
the  same  has  been  tiled,  unless  proceedings  be  commenced  in  a 
proper  Court  within  that  time  to  enforce  the  same;  or  if  a 
credit  be  given,  then  ninety  days  after  the  expiration  of  such 
credit;  but  no  lien  continues  in  force  for  a  longer  time  than 
two  years  from  the  time  the  work  is  completed,  by  any  agree- 
ment to  give  credit. 

In  every  case  in  which  ditt'erent  liens  are  asserted  against 
any  property,  the  Court  in  the  judgment  must  declare  the 
rank  of  each  lien  or  class  of  liens,  which  shall  be  in  the  fol- 
lowing order,  viz.;  First,  All  per.sons  other  than  the  original 
contractors  and  sub-contractors.  Second,  The  sub-contractors. 
Third,  The  original  contractors.  And  the  proceeds  of  the  sale 
of  the  property  niust  be  applied  to  each  lien  or  class  of  liens 
in  the  order  of  its  rank;  and  whenever,  on  the  sale  of  the  pro- 
perty subject  to  the  lien,  there  is  a  deficiency  of  proceeds,  judg- 
ment may  be  docketed  for  the  deficiency. 

Any  number  of  persons  claiming  liens  may  join  in  the  same 
action,  and  when  separate  actions  are  commenced,  the  Court 
may  consolidate  them.  Tlie  Court  may  also  allow,  as  part  of 
the  costs,  the  moneys  paid  for  filing  and  recording  the  lien. 
Nothing  contained  in  this  title  .shall  be  construed  to  impair  or 
aftect  the  right  of  any  person  to  whom  any  debt  may  be  due 
for  work  done  or  materials  furnished,  to  Tiiaintain  a  personal 
action  to  recover  such  debt  against  the  person  liable  therefore. 


CHAPTER  XIII. 

ESTATES  OF  DECEASED  PERSONS. 

Order  of  persons  entitled  to  administer: 
1.     The  surviving  husband  or  wife,  or  some  competent  per- 
son whom  he  or  she  may  re<juest  to  have  appointe<i. 


Part  6 


Chap.  13] 


Idaho. 


229 


^  claim 

person, 
iiprove- 
yn  after 
ceil  in  a 

or  it'  a 

of  such 
me  than 
ly  agree- 

i  against 
clare  the 
the  fol- 
i  original 
intractors. 
:  the  sale 
i  of  liens 
f  the  pro- 
ieds,  judg- 

the  same 
he  Court 
part  of 

the  lien, 
impair  or 
ay  be  due 
a  personal 

therefore. 


as 


IS. 
ipetent  per- 


2. 
3. 
4. 
5. 
(). 
7. 


9. 

10. 

11. 


The  children. 
The  father  or  mother. 
The  brothers. 
The  sisters. 
The  grandchildren. 

The  next  of  kin  entitled  to  share  in  the  distribution  of 
the  estate. 

8.     Any  of  the  kindred. 

Tlie  public  administrator. 
The  creditors. 

Any  person  legally  competent. 
If  the  decedent  was  a  member  of  a  partnership  at  the  time 
of  his  decease,  the  surviving  partner  must  in  no  case  be  ap- 
pointed administrator  of  the  estate. 

Of  .several  persons  claiming  and  equally  entitled  to  admin- 
ister, males  must  be  preferred  to  females,  and  relatives  of  the 
whole  to  those  of  half  blood. 

When  there  are  several  persons  equally  entitled  to  the  ad- 
ministration, the  Court  may  grant  letters  to  one  or  more  of 
them;  and  when  a  creditor  is  claiming  letters  the  Court  may, 
in  its  discretion,  at  the  request  of  another  creditor,  grant  letters 
to  any  other  person  legally  competent. 

No  person  is  competent  to  serve  as  administrator  or  admin- 
istratrix who  is: 

1,     Not  a  bona  fide  resident  of  the  Territory. 
Under  the  age  of  majority. 
Convicted  of  an  infamous  crime. 

Adjudged  by  the  Court  incompetent  to  execute  the 
duties  of  the  trust  by  reason  of  drunkenness,  improvidence,  or 
want  of  under'^tanding  or  integrity. 

A  married  woman  must  not  be  appointed  administratrix. 
Letters  of  administration  must  be  granted  to  any  applicant, 
though  it  appears  that  there  are  other  persons  having  better 
rights  to  the  administration,  when  such  persons  fail  to  appear 
and  claim  the  issuing  of  letters  to  themselves. 

The  administrator  must  give  bonds,  with  two  or  more  suffi- 
cient sureties,  to  be  approved  by  the  probate  Judge,  the  pen- 


2. 
3. 
4. 


280 


Idaho. 


[Part  G 


i; 


alty  to  be  nc'  -ess  than  twice  the  value  of  the  personal  proper- 
ty, and  twice  the  probable  value  of  the  annual  rents,  profits, 
and  issues  of  the  real  property ;  additional  bonds  may  be  re- 
quired when  a  sale  of  real  estate  is  ordered. 

When  a  person  dies  leaving  a  widow  or  minor  children, 
until  letters  are  granted  and  the  inventory  is  returned,  they 
are  entitled  to  remain  in  ])ossession  of  the  homestead,  of  the 
wearing  apparel  of  the  fa.  lily,  and  of  all  the  household  furni- 
ture of  the  decedent,  ana  are  also  entitled  to  a  reasonable  pro- 
vision for  their  support,  to  be  allowed  by  the  probate  Judge. 

The  Court  or  probate  Judge  may  set  apart  for  the  use  of 
the  surviving  husband  or  wife,  or  the  minor  children  of  the 
decedent,  all  property  exempt  from  execution,  inclr.ding  the 
homestead  selected,  desigmtod  and  recorded.  If  no  homestead 
has  been  selected,  designated  and  recorded,  the  Judge  or  the 
Court  must  select,  designate,  set  apart  and  cause  to  be  record- 
ed, a  homestead  for  the  use  of  the  persons  before  named. 

If  the  amount  set  apart  be  insufficient  for  *.he  support  of 
the  widow  and  children,  or  either,  the  Probate  Court  or  Judge 
must  make  such  reasonable  allowance  out  of  the  estate  as  shall 
be  necessary  icr  the  maintenance  of  the  family,  according  to 
their  circumstances,  iluring  the  progress  of  the  settlement  of 
the  estate;  which,  in  case  of  an  insolvent  estate,' must  not  be 
longer  than  one  year  after  granting  of  letters. 

If  oj'  the  return  of  the  inventory  of  the  estate  of  an  intes- 
tate, it  appears  that  the  value  of  the  whole  estate  does  not  ex- 
ceed the  sum  of  fifteen  hundred  dollars,  it  must  be  assigned  for 
the  use  of  the  Vv'idow  ami  minor  child  or  children,  after  pay- 
ment of  the  expenses  of  his  last  ilhiess,  funeral  charges,  and 
the  expenses  of  the  administratioa. 

If  it  appear  that  the  value  of  the  whole  estate  does  not  ex- 
ceed the  sum  of  fifteen  hundred  dollars,  there  may  be  i'  .sum- 
mary administration  .)f  the  estate,  and  an  order  of  distrib.ition 
tit  the  end  of  six  months  after  the  issuing  of  letters. 

Claims  against  the  estate  miist  be  pr(?sented  to  the  execu- 
tor or  administrator  within  the  time  spocifieil  in  the  notice  to 
creditors,  r«ujuesting  them  to  present  their  claims;  when   the 


j¥P. 


Chap.  13] 


Idaho. 


231 


value  of  the  estate  exceeds  fifteen  hundred  dollars,  the  time 
expressed  in  the  notice  must  be  ten  months;  when  it  does  not 
exceed  fifteen  hundred  dollars,  four  months.  If  a  claim  be  not 
presented  within  the  time  limited  in  the  notice,  it  is  barred 
forever;  except  where  it  is  made  to  appear,  by  the  affidavit  of 
the  claimant,  to  the  satisfaction  of  the  executor  or  administra- 
tor, and  the  probate  Judge,  that  the  claimant  had  no  notice,  by 
reason  of  being  out  of  the  Territory,  it  may  be  presented  at 
any  time  before  a  decree  of  distribution  is  entered. 

Every  clain;  wuich  is  due  when  presented  to  the  adminis- 
trator must  be  supported  by  the  athdavit  of  the  claimant,  or 
some  one  in  his  behalf,  that  the  amount  is  justly  due,  that  no 
payments  have  been  made  thereon  which  are  not  credited,  and 
that  there  ai-e  no  ofF-.sets  to  the  same,  to  the  knowledge  of  the 
claimant  or  affiant.  If  the  claim  be  not  duo  when  presented, 
or  be  contingent,  the  particulars  of  such  claim  must  be  stated. 
vVhen  the  affidavit  is  made  by  a  person  other  than  the  claimant, 
he  must  set  forth  in  the  affidavit  the  reason  why  it  is  not 
ma<le  by  the  claimant.  The  oath  may  be  taken  by  any  officer 
authorized  to  iidministev  oaths.  The  executor  or  administrator 
may  also  rt'(juire  satisfactory  vouchers  or  proofs  to  be  produced 
in  support  of  the  claim.  If  the  estate  be  in^rolvent,  no  gi'eater 
rate  of  interest  shall  be  allowed  upon  any  claim,  afti-r  the  first 
publication  of  notice  to  creditors,  than  seven  per  cent. 

When  a  claim,  accompanied  liy  the  affiilavit  re<|uired  as 
aforesaid,  is  presented  to  the  executor  or  administrator,  he 
nuist  endorse  thereon  his  allowance  or  rejection,  with  the  day 
an<l  date  thereof.  If  he  allows  the  clai'ii,  it  must  be  presented 
to  the  probate  Judge  for  his  approval,  who  nuist,  in  the  same 
manner,  endorse  upon  it  his  allowance  oi-  rejection.  If  the  ex- 
ecutor or  administrator,  or  Judge,  refuse  or  neglect  to  endorse 
such  allowance  cr  rejection,  for  ten  days  after  the  claim  has 
been  presented  to  him,  such  refusal  or  neglect  is  e(|nivalent  to 
a  rejection  on  the  tenth  day;  and  if  the  pre^lentation  Vie  made 
by  a  notary,  the  certificate  of  such  notary,  under  seal,  is  prima 
facie  evidence  of  such  presentation  and  rejection.  If  theclaifn 
be  presented  to  tlie  executor  or  administrator  before  the  expir- 


232 


Idaho. 


[Part  6 


fi   ,!  ■ 


f 


I 


ation  of  the  time  limited  for  the  presentation  of  claims,  the 
same  is  presented  in  time,  though  acted  upon  by  the  executor 
or  administrator,  and  by  the  Judge,  after  the  expiration  of 
such  time.  If  a  claim  be  payable  in  a  particular  kind  of  money 
or  currency,  it  shall,  if  allowed,  be  payable  only  in  such  money 
or  currencj'. 

Every  claim  allowed  by  the  executor  or  administrator,  and 
approved  by  the  probate  Judge,  or  a  copy  thereof,  must,  within 
thirty  days  thereafter,  be  tiled  in  the  Probate  Court. 

If  the  claim  is  founded  on  a  bond,  bill,  note,  or  any  other 
instrument,  a  cop}'  of  such  instrument  must  accompany  the 
claim,  and  the  original  instrument  must  be  exhibited  if  de- 
manded, unless  it  be  lost  or  destroyed;  in  which  case  the  claim- 
ant must  accompany  his  claim  by  his  affidavit,  containing  a 
copy  or  particular  description  of  such  instruujent,  and  state  its 
loss  or  destruction.  Book  accounts  sliould  be  made  out  in  de- 
tail, and  attached  to  the  affidavit  in  proof  of  claim.  If  the 
claim,  or  any  part  thereof,  is  secured  l)y  a  mortgage  or  other 
lien  which  has  been  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  the  land  affected  by  it  lies,  it  is  sufficient  to 
descj'ibe  the  mortgage  or  lien,  and  refer  to  the  date,  volume, 
and  page  of  its  record.  A  judgment  for  the  i-ecover}-  of  money 
must  be  presented  to  the  executor  or  administrator  like  any 
other  claim.  A  rejected  claim  must  be  sued  for  within  three 
months  from  date  of  its  rejection,  if  it  be  then  <lue,  or  within 
two  months  after  it  becomes  due;  otherwi'<o  the  claim  is  for- 
ever barred. 

Claims  barred  by  the  statute  of  limitation  must  not  1h' 
allowed.  No  holder  of  any  claim  against  an  estate  shall  main- 
tain an}'  action  thereon,  unless  the  claim  is  first  presented  to 
the  executor  or  administrator. 

A  judgment  rendered  against  a  decedent  dying  after  verdict 
or  decision  on  an  issue  of  fact,  but  before  judgntcnt  is  rendered 
thereon,  is  not  a  lien  on  the  real  property  of  the  decedent,  but 
is  payablt.'  in  the  due  course  of  administration. 

A  juilgment  rendered  against  an  executor  or  administrator, 
upon  any  claim  for  money  against  tlie  estate,  (»nly  establishes 


Chap.  13] 


Idaho. 


233 


the  claim  in  the  same  manner  as  if  it  had  been  duly  allowed, 
and  the  judgment  must  be  that  the  executor  or  administrator 
pay,  in  due  course  of  administration,  the  amount  ascertained  to 
be  due.  A  certified  copy  of  the  judgment  must  be  tiled  in  the 
Probate  Court.  No  execution  must  issue  upon  such  judgment, 
and  no  lien  is  created. 

Every  executor  or  administrator  must  render  a  full  account 
and  a  report  of  his  administration  at  the  expiration  of  one  year 
from  the  time  of  his  appointment. 

Upon  the  settlement  of  the  accounts  at  the  end  of  the  year 
as  required,  the  Court  must  make  an  order  for  the  payment  of 
the  debts,  as  the  circumstances  of  the  estate  require. 

The  debts  of  the  estate  must  bo  paid  in  the  following 
order : 

1.  Funeral  expenses.  * 

2.  T!.o  expenses  of  the  last  sickness. 

3.  Debts  having  preference  by  the  laws  of  the  United 
States. 

4.  Judgments  rendered  against  the  decedent  in  his  life- 
time,  and  mortgages  in  the  order  of  their  date. 

5.  All  other  demands  against  the  estate. 

The  preference  given  to  a  mortgage  only  extends  to  the 
proceeds  of  the  property  mortgaged.  If  there  is  a  deficiency 
it  must  be  classed  with  the  other  ilemands  against  the  estate. 


CHAPTER  XIV. 

SUCCESSION. 

Succession  is  the  coming  in  of  another  to  take  the  proper- 
ty of  one  who  dies  withotit  disposing  of  it  by  will. 

The  propijrty,  both  real  a»id  personal,  of  one  who  dies  with- 
out di.sposiug  of  it  by  will,  passes  to  the  lu-irs  of  the  intestate, 
.subject  to  the  control  of  the  Probate  Court,  and  to  the  posses- 
sion of  any  administrator  appointed  by  that  Court  for  the 
purposes  of  administration. 


234 


Idaho. 


[Part  G 


Mi 


.  i 


When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  it  is  succeeded  to  and  must  be  distributed,  un- 
less otherwise  expressly  provided  in  this  Code,  subject  to  the 
payment  of  his  debts  in  the  following  manner: 

1.  If  the  decedent  leave  a  surviving  husband  or  wife,  and 
only  one  child,  or  the  lawful  issue  of  one  child,  in  equal  shares 
to  the  surviving  husband,  or  wife  and  child,  or  issue  of  such 
child.  If  the  decedent  leave  a  surviving  husband  or  wife,  and 
more  than  one  child  living,  or  one  child  living  and  the  lawful 
issue  of  one  or  more  deceased  cliildren,  one-third  to  the  surviv- 
ing husband  or  wife,  and  the  remainder  in  e(|ual  shares  to  his 
children,  and  to  the  lawful  issue  of  any  deceased  child,  by  right 
of  representation  ;  but  if  there  be  no  child  of  the  decedent  liv- 
ing at  his  death,  the  remainder  g(jes  to  all  of  his  lineal  descend- 
ants ;  and  if  all  of  the  descendants  are  in  the  same  degi'oe  of 
kindred   to  the  decedent,  they  share  equally,  otherwise  they 

'  take  according  to  the  right  of  representaticjn.  If  the  decedent 
leave  no  surviving  husband  or  wife,  but  leave  issue,  the  whole 
estate  goes  to  such  issue;  and  if  such  issue  consists  of  more 
than  one  child  living,  and  the  lawful  issue  of  one  or  more  de- 
ceased children,  then  the  estate  goes  in  ecjual  shares,  to  the 
children  living,  or  to  the  child  living,  and  the  issue  of  the  de- 
ceased child  or  children  by  right  of  representation. 

2.  If  the  decedent  leave  no  issue,  the  estate  goes,  one-half 
to  the  surviving  husband  or  wife  and  the  other  half  to  the 
decedent's  father  and  mother  in  eipial  shares,  an<l  if  either  be 
dead,  the  whole  of  said  half  goes  to  the  other;  if  there  be  no 
father  or  mother,  one-half  goes  in  equal  shares  to  the  brothers 
and  sisters  of  the  decedent,  and  to  the  children  of  any  deceased 
brother  or  sister  by  right  of  representation.  If  the  decedent 
leave  no  issue,  nor  husband,  nor  wife,  the  estate  must  go  t^j  his 
father  and  mother,  in  e(]ual  sliares,  or  if  either  be  dead,  then  to 
the  other. 

3.  if  tliere  be  neither  issue,  husband,  wife,  father,  nor 
mother,  then  in  equal  shares  to  the  bi-others  and  sisters  of  the 
decedent,  and  to  tiie  chiMren  of  any  deceased  brotlier  or  sister 
by  right  of  representation. 


Chap.  14] 


Idaho. 


235 


4.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
neither  issue,  father,  mother,  brother,  nor  sister,  the  whole 
estate  goes  to  the  surviving  husband  or  wife. 

5.  If  the  decedent  leave  neither  issue,  husband,  wife, 
father,  mother,  brother,  nor  sister,  the  estate  must  go  to  the 
next  of  kin  in  c^ual  degree,  excepting  tliat  .vhen  there  are 
two  or  more  collateral  kindri  I  in  equal  degree,  but  claiming 
through  different  ancestors,  thosi;  who  claim  throu^^jh  the  nearest 
ancestors  must  be  preferred  to  those  claiming  through  an 
ancestor  more  remote. 

6.  If  the  di-cedent  leave  several  children,  or  one  child,  and 
the  issue  of  one  or  more  cliildren,  and  any  such  surviving  child 
dies  under  age,  and  n(jt  having  been  married,  all  the  estate  tliat 
came  to  the  deceased  child  by  inheritance  from  such  decedent 
descends  in  equal  shares  to  the  other  childi'en  of  the  same 
parent,  and  to  the  issue  of  any  such  other  children  who  are 
dead,  by  right  of  repre.sentation. 

7.  If  at  the  death  of  such  child,  who  dies  under  age,  not 
having  been  married,  all  the  other  children  of  his  parents  are 
also  dead,  and  any  of  them  have  left  issue,  the  estate  that  came 
to  such  child  by  inheritance  from  his  parents  descends  to  the 
i.ssue  of  all  other  children  of  the  same  parent;  and  if  all  the 
issues  are  in  the  same  degree  of  kindred  to  the  child,  they 
share  the  estate  equallj',  otherwise  they  take  according  to  the 
right  of  representation. 

H.  If  the  decedent  be  a  widow  or  widower,  and  leave  no  kin- 
dred, and  the  estate,  or  any  portion  thereof,  was  common  prop- 
erty of  such  decedent,  and  his  or  her  decea-sed  spouse,  wliile 
such  spouse  was  living,  such  common  property  shall  go  to  the 
father  of  such  deceased  spouse,  or  if  he  be  dead  to  the  mother. 
If  there  be  no  father  nor  mother,  then  such  property  shall  go 
to  the  brothers  and  sisters  of  such  deceased  spouse  in  eipial 
shares,  and  to  the  lawful  issue  of  tyiy  deceased  brother  or  sister 
of  such  deceased  spouse,  by  right  of  representation. 

9.  If  the  decetlent  leave  no  husband,  wife  or  kindretl,  and 
there  be  no  heirs  to  take  his  estate,  or  any  portion  thereof,  un- 
der subdivision  eight  of  this  section,  the  same  shall  be  paid 
into  the  Territorial  Treasury  for  the  support  of  common  schools. 


236 


Idaho. 


[Part  G 


II 


2J' 

if 

^^;- 

1^:4. 

The  above  provisions,  as  to  the  inlieritance  of  the  husband 
and  wife  from  each  other,  apply  only  to  the  separate  property 
of  the  decedents. 

Upon  the  death  of  the  wife,  the  entire  community  property, 
without  administration,  belongs  to  the  surviving  husband,  ex- 
cept such  portion  thereof  as  may  have  been  set  apart  to  her  by 
judicial  decree,  for  her  support  and  maintenance,  which  portion 
is  subject  to  her  testamentary  disposition,  and  in  the  absence 
of  such  disposition  goes  to  her  descendents  or  heirs,  exclusive 
of  her  husband. 

Upon  the  death  of  the  husband,  one-half  of  the  community 
property  goes  to  the  surviving  wife,  and  the  other  half  is  sub- 
ject to  the  testamentary  disposition  of  the  husl/and,  and  in  the 
absence  of  such  disposition  goes  to  his  descendants,  equally,  if 
such  descendants  are  in  the  same  degree  of  kindred  to  the  de- 
cedent; otherwise,  according  to  the  right  of  representation; 
and  in  the  absence  of  both  such  dispositions,  and  such  descend- 
ants, is  subject  to  distribution  in  the  same  manner  as  the  separ- 
ate property  of  the  husband.  In  case  of  the  dissolution  of  the 
community  by  the  death  of  the  husband,  the  entire  community 
property  is  equally  subject  to  his  debts,  the  family  allowance, 
and  the  charges  and  expen.ses  of  administration. 

Every  illegitimate  child  is  an  heir  of  the  person  who,  in  writ- 
ing, signed  in  the  presence  cf  a  competent  witness,  acknowl- 
edges himself  to  be  the  father  of  such  child;  and  in  all  cases  is 
an  heir  of  his  mother,  and  inherits  liis  or  her  estate,  in  whole 
or  in  part,  as  the  case  may  be,  in  the  sji,me  manner  as  if  he  had 
been  born  in  lawful  wedlock;  but  he  does  not  represent  his 
father  or  mother  by  inheriting  any  part  of  the  estate  of  his  or 
her  kindred,  either  lineal  or  collateral,  unless,  before  his  death, 
his  parents  .shall  have  inter-married,  and  his  father,  after  such 
marriage,  acknowledges  him  as  his  child,  or  adopts  him  into 
his  family,  in  which  case  suoli  child  and  all  the  legitimate  chil- 
dren are  considered  brothers  and  sisters,  and  on  the  death  of 
either  of  them  intestate,  and  without  issue,  the  others  inherit 
his  estate,  and  are  heirs  as  hereinbefore  provided,  in  like  man- 
ner as  if  all  the  childreii  had  been  legitimate;  saving  to  the 
father  and  mother  respectively  their  rights  in  the  estates  of  all 


Chap.  14] 


Idaho. 


287 


the  children  in  like  manner  as  if  all  had  been  legitimate.  The 
issue  of  all  marriages  null  in  law,  or  dissolved  by  divcrce,  are 
legitimate. 

If  an  illegitimate  child,  who  has  not  been  acknowledged  or 
adopted  by  his  father,  dies  intestate,  without  lawful  issue,  his 
estate  goes  to  his  mother,  or  in  case  of  her  decease,  to  her  heirs 
at  law. 


CHAPTER   XV. 
HOMESTEADS. 

The  homestead  consists  of  the  dwelling-house  in  which  the 
claimant  resides,  and  the  land  on  which  the  same  is  situated, 
selected  as  hereinafter  provided: 

Homesteads  may  be  selected  and  claimed. 

1.  Of  not  exceeding  five  thousand  dollars  in  value,  by  any 
head  of  a  family. 

2.  Of  not  exceeding  one  thousand  dollars  in  value,  by  any 
other  person. 

The  phrase  "head  of  a  family,"  as  used  in  this  title,  includes 
within  its  meaning: 

Flrxt — The  husband  or  wife  when  the  claimant  is  a  mar- 
ried person. 

Second — Every  person  who  has  residing  on  the  premises 
with  him  or  her,  and  under  his  or  her  care  and  maintenance, 
either: 

1.  His  or  her  minor  child,  or  tlie  minor  child  of  his  or 
her  deceased  wife  or  husband. 

2.  A  minor  brother  or  sister,  or  the  minor  child  of  a  de- 
ceased brother  or  sistei'. 

a.     A  father,  mother,  grandfather  or  grandmother. 

4.  The  father,  mother,  grandfather,  or  grandmother  of  a 
decea.seil  husband  or  wife. 

5.  An  unmarried  sister,  or  any  other  of  the  relatives 
mentioned  who  have  attained 


able  to  support  themselves. 


ago  ot  majority, 


238 


Idaho. 


[Part  f) 


li 


n 


tf-'Y 


m^ 


The  declaration  of  homestead  must  be  executed,  acknowl- 
edged, and  duly  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  the  land  is  situated.  From  and  after  the 
time  the  declaration  is  filed  for  recoi'd,  the  premises  therein 
described  constitute  a  homestead. 

The  homestead  is  exempt  from  execution  or  forced  sale, 
except  in  satisfaction  of  judgments  obtained : 

1.  Before  the  declaration  of  homestead  was  filed  for  record, 
and  which  constitute  liens  upon  the  premises,  or  in  an  action 
in  which  an  attachment  was  levied  upon  the  premises  before 
the  filing  of  such  dclaration. 

2.  On  debts  secured  by  mechanics',  laborers'  or  vendors' 
liens  upon  the  premises. 

3.  On  debts  secured  by  mortgages  upon  the  premises, 
executed  and  acknowledged  by  the  husband  and  wife,  or  an 
unmarried  claimant. 

4.  On  debts  secured  by  mortgages  upon  the  premises, 
executed  and  recorded  before  the  declaration  of  homestead  was 
filed  for  record. 

Tiic  homestead  of  a  married  person  cannot  be  conveyed  or 
incumbered,  unless  the  instrument  is  executed  and  acknowledged 
by  both  husband  and  wife. 

If  the  homestead  exceed  in  value  the  amount  of  the 
homestead  exemption,  the  excess  may  be  reached  on  execution, 
but  the  property  must  first  be  appraised,  upon  application  to 
the  county  Judge. 

The  homestead  may  be  abandoned  by  filing  in  the  office 
where  the  declaration  is  filed  a  declaration  of  abandonment, 
duly  executed. 


CHAPTER   XVI. 

CORPORATIONS. 

The   provisions   of    our    corporation    law   are   similar    to 
California. 


Chap.  17] 


Idaho. 


239 


CHAPTER   XVII. 


ACKNOWLEDGMENTS. 


The  proof  or  acknowledgment  of  an  instrument  may  be 
made  at  any  place  within  this  Territory,  before  a  Justice  or 
Clerk  of  the  Supreme  Court. 

The  proof  or  acknowledgment  of  an  instrument  may  be 
made  in  this  Territory  within  the  city,  county  or  district  for 
which  the  officer  was  elected  or  appointed,  before  either: 

1.  A  Judge  or  Clerk  of  a  Court  of  record;  or, 

2.  A  County  Recorder;  or, 

3.  A  Notary  Public;  or, 

4.  A  Justice  of  the  Peace. 

The  proof  or  acknowledgment  of  an  instrument  may  be 
made  without  this  Territory,  but  within  the  United  States, 
and  within  the  jurisdiction  of  the  officer,  before  either: 

1.  A  Justice,  Judge,  or  Clerk  of  any  Court  of  Record  of 
the  United  States;  or, 

2.  A  Justice,  Judge,  or  Clerk  of  any  Court  of  Record  of 
any  State  or  Territory ;  or, 

3.  A  Commissioner  appointed  by  the  Governor  of  this 
Territory  for  that  purpose;  or, 

4.  A  Notary  Public;  or, 

5.  Any  other  officer  of  the  State  or  Territory  where  the 
the  acknowledgment  is  made,  authorized  by  its  laws  to  take 
such  proof  or  acknowledgment. 

The  proof  or  acknowledgment  of  an  instrument  may  be 
made  without  the  United  States,  before  either: 

1.  A  minister,  commissioner,  or  charge  d'atfairs  of  the 
United  States,  resident  and  accredited  in  the  country  where 
the  proof  or  acknowledgment  is  made;  or, 

2.  A  consul  or  vice-consul  of  the  United  States,  resident 
in  the  country  where  the  proof  or  acknowledgment  is  made;  or, 


^ 


p 

p. 


m 


I 


240 


Idaho. 


[Part  G 


3.  A  Judge  of  a  Court  of  Record  of  the  county  where 
the  proof  or  acknowledgment  is  made;  or, 

4.  Commissioners  appointed  for  such  purposes  by  the 
Governor  of  tlie  Territory  pursuant  to  statute;  or, 

5.  A  Notary  Public. 

If  any  of  the  above  named  officers  are  authorized  by  law  to 
appoint  a  deputy,  the  acknowledgment  or  proof  may  be  taken 
by  such  deputy  in  the  name  of  Ids  principal. 

The  acknowledgment  of  an  instrument  must  not  be  taken, 
unless  the  officer  taking  it  knows,  or  has  satisfactory  evidence, 
on  the  oath  or  affirmation  of  a  credible  witness,  that  the  per- 
son making  such  acknowledgment  is  the  individual  who  is 
described  in  and  who  executed  the  instrument;  or  if  executed 
by  a  corporation,  that  the  person  making  such  acknowledg- 
ment is  the  president  or  secretary  of  such  corporation. 

The  acknowledgment  of  a  married  woman  to  an  instru- 
ment purporting  to  be  executed  by  her  must  not  be  taken, 
unless  she  is  made  acquainted  by  the  officer  with  the  contents 
of  the  instrument  on  an  examination  without  the  hearing  of 
her  husband ;  nor  certified,  unless  she  thereupon  acknowledges 
to  the  officer  that  she  executed  the  instrument,  and  that  she 
does  not  wish  to  retract  such  execution. 

Officers  must  authenticate  their  crtificates  by  affixing 
thereto  their  signatures,  followed  by  the  names  of  their  offices; 
also,  their  seals  of  office,  if  by  the  laws  of  the  State  or  country 
where  the  acknowledgment  or  proof  is  taken,  or  by  authority 
of  which  they  are  acting,  they  are  recjuired  to  have  official  seals. 

The  certificate  of  proof  or  acknowledgment,  if  made  before 
a  Justice  of  the  Peace,  when  used  in  any  county  other  than 
that  in  which  he  resides,  must  be  accompanied  by  a  certificate 
under  the  hand  and  seal  of  the  Clerk  of  the  county  in  which 
the  Justice  resides,  setting  forth  that  such  Justice,  at  the  time  of 
taking  such  proof  or  acknowledgment,  was  authorized  to  take 
the  same,  and  that  the  Clerk  is  acquainted  with  his  hand- 
writing, and  believes  that  the  signature  to  the  original  certifi- 
cate is  genuine. 


ft*''        V    T 


Chap    IS] 


Idaho. 


241 


CHAPTER  XVIII. 
DEPOSITIONS. 


affixing 
offices ; 
Icountvy 
thority 
feal  seals, 
before 
er  than 
rtiticate 
In  which 
time  of 
to  take 
s  hand- 
certiti- 


The  testimony  of  a  witness  out  of  the  'rciritovv  may  liC 
taken  hy  ih'position  in  an  action  at  any  time  after  the  service 
of  sumnums,  or  tlie  appearance  of  tlie  defendant;  and  in  a 
special  proceedinof,  at  any  time  after  a  (piestion  of  fact  has 
arisen  therein.  The  testinKMix  of  any  person  in  this  Territory 
competent  to  testify  as  a  witness  may  be  taken  in  a  civil  action 
at  any  tinn.'  aft*  r  the  service  of  siunmons,  or  the  appearance  of 
the  tlefendant;  and  in  a  .special  proceeding',  after  a  (juestion  of 
fact  has  arisen  therein;  but  such  deposition  shall  be  used  only 
when  it  shall  appear  at  the  time  the  same  is  offe..  d  for  use: 

1.  That  the  witness  resides  out  of  the  county  in  which  the 
action  or  proceeding  is  peniling,  or  is  absent  therefrom;  or, 

2.  That  the  witness  is  iniable  to  attend  Court  on  account 
of  age,  intirmity,  imprisonment  or  death. 

The  depo.sition  of  a  witness  out  of  thi-  Territory  may  be 
taken  upon  connnission  i.ssued  from  the  Court,  under  the  seal 
of  the  Court,  upon  an  order  of  the  Judge  or  Court,  or  Probate 
Judge,  on  the  applieation  of  eitlier  party,  upon  tive  days  pre- 
vious notice  to  the  other.  If  issued  to  any  place  within  the 
United  States,  it  may  be  directed  to  a  per8t)n  agreetl  upon  by 
the  parties,  or  if  they  do  not  agree,  to  any  Judge  or  Justice  of 
the  Peace,  or  person  named  as  commissioner  by  tin;  Court  or 
.Fudge  issuing  it.  If  issued  to  any  country  out  of  the  United 
States,  it  may  be  directed  to  a  minister,  embassador,  consul, 
vice-consul,  or  consular-agent  of  the  United  States  in  such 
country,  or  to  any  person  agreed  upon  by  the  parties. 

Such  proper  interrogatories,  direct  and  cross,  as  the  respec- 
tive parties  may  prepare  to  be  settled,  if  the  parties  disagree 
as  to  their  form,  by  the  Judge  or  officer  granting  the  order  for 
the  connnission,  at  a  day  fixed  in  the  order,  Juay  be  aimexed 
to  the  commission;  or,  when  the  parties  agree  to  that  mode, 
t'le  examinatiiui  may  be  without  written  interrogatories. 


242 


Idaho. 


[Part  (5 


The  cornnii.ssion  must  autliorize  tlie  coininissionor  to  admin- 
ister an  oath  to  tlie  witness,  and  to  take  his  deposition  in  an- 
swer to  the  interrogatories;  or,  when  the  examination  is  witli- 
out  interrogatories,  in  rtjspect  to  the  question  in  dispute,  anil 
to  certitiy  the  deposition  to  the  Court  in  a  sealed  envelope, 
directed  to  the  Clerk  or  otljer  person  designated  or  agreed 
upon,  and  forwarded  to  him  by  mail  or  other  usual  channel  of 
conveyance. 


CHAPTER   XIX. 


JUDICIAL  RECORDS. 


A  judicial  record  is  the  record  or  ofticial  entry  or  proceed- 
ings in  a  Court  of  justice,  or  of  the  official  act  of  a  judicial 
officer,  in  an  action  or  special  proceeding. 

A  judicial  record  of  this  Territory,  or  of  the  United  States, 
may  be  proved  by  the  production  of  the  original,  or  a  copy 
thereof,  certitied  l)y  the  Clerk  or  other  person  having  the  legal 
custody  thereof.  That  of  a  State  or  other  Territory  may  be 
proved  by  the  attestation  of  the  Clerk  and  the  seal  of  the 
Court  annexed,  if  there  be  a  Clerk  and  seal,  together  with  a 
certificate  of  tiie  Chief  Judge  or  Presiding  Magistrate,  tliat  the 
attestation  is  in  due  form.  A  judicial  record  of  a  foreign 
country  may  be  proved  by  the  attestation  of  the  Clerk,  with 
the  seal  of  the  Court  annexetl,  if  there  l)e  a  Clerk  or  seal,  or  of 
the  legal  keeper  of  the  record,  with  the  seal  of  his  office  an- 
nexed, if  there  be  a  seal,  togi^ther  with  a  certificate  of  thr 
Chief  Judge  or  Presiding  Magistrate,  that  the  person  nuiking 
the  attestatiim  is  the  Clerk  of  the  Court,  or  the  legal  keeper  of 
the  record,  and,  in  either  case,  that  the  signature  of  such  per- 
son is  genuine,  and  that  the  attestation  is  in  due  form.  The 
signature  of  the  Chief  Judge  or  Presiding  Magistrate,  must  in' 
authenticated  by  th»>  certificate  of  the  minister  or  embassador, 
or  a  consul,  vicf-consul,  or  consular  agent  of  the  United  States 
in  such  foreign  ccjuntry. 


art  0 


Chap.  10] 


Idaho. 


243 


Llmin- 
in  lui- 
with- 
,e,  anil 
k'olopt', 
aj^recil 
inel  of 


A  copy  of  tho  ju<Uciul  record  o{  a  f()roi«,'n  ooimtry  is  also 
admissihlc  in  evidt'nc*!  upon  proof: 

1.  That  the  copy  offered  has  been  compared  hy  tlio  \vitues.s 
with  tlie  ori^dnal,  and  is  an  exact  transcript  of  the  whole  of  it. 

2.  That  such  ()ri<,dnal  was  in  the  custody  of  the  Clerk  of 
the  Court  or  other  le<,'al  keeper  of  the  .saute;  and, 

'A.  That  the  copy  is  duly  attested  by  a  .seal  which  is  proved 
to  be  the  seal  of  the  Court  where  the  record  remains,  if  it  be 
the  reconl  of  a  Court,  or  if  there  be  no  such  .seal,  or  if  it  be 
not  a  record  of  a  Court,  by  the  signature  of  the  legal  keeper 
of  the  original. 


procee«l- 
judicial 

d  States, 
a  copy 
the  legal 
y  nmy  !>•' 
of'  tin- 
with  a 
that  the 
foreign 
rk,  with 
seal,  or  of 
office  an- 
e  of  the 
II  making 
keeper  of 
such  pcr- 
mr^n.     Tlu- 
,  unist  be 
iibassador, 
ted  States 


CHAPTER  XX.     . 
SPECIAL  PARTNERSHIP. 

Special  partnerships  for  the  transaction  of  mercantile, 
mechanical,  mining  or  manufacturing  business  may  be  formed, 
but  not  for  the  purpo.se  of  banking  or  insurance. 

No  .such  partnership  shall  be  deemed  to  have  been  formed 
until  a  certiHcat'3  which  .shall  contain  the  name  or  firm  under 
which  said  purtner.shij)  is  t(j  be  con<lucte'l,  the  names  and 
respective  places  of  residence  of  all  the  ge.ieral  and  special 
partners,  distinguishing  who  are  general  and  ivho  arc  special 
partners,  the  amount  of  capital  which  each  special  partner  ha.s 
contributed  to  the  capital  stock,  the  general  nature  of  the 
busine,s.s  to  be  tian.sacted,  the  time  when  the  partnership  is  to 
commence  and  terminate,  shall  be  made  and  severall}-  signed 
and  acknowledged  by  all  the  partners,  before  an  oilicer 
authorized  to  take  acknowledgment  of  deeds,  and  recorded  in 
the  office  of  the  Rec<jrder  of  the  county  in  which  the  principal 
place  of  business  of  the  partnership  i.s  located.  If  there  .shall 
be  a  place  of  busines,s  in  diffiirent  counties,  .said  certificate  shall 


244 


Idaho, 


[Part  G 


III 


ml 


be  rocorded  in  each  of  such  counties;  a  copy  of  such  certificate 
shall  be  published  three  successive  weeks  in  the  county  where 
the  principal  place  of  business  is  h)cated. 

Any  false  statement  in  the  certificate  makes  all  the  partners 
liable  as  j^eneral  partners. 

The  special  partners  siiall  not  be  personally  liable  for  any 
debts  of  the  partnership,  except  their  names  be  used  in  said 
firm  with  th.eir  consent  or  privity,  or  shall  personally  make 
any  contract  respectin<^  the  concerns  of  the  partnership  with 
any  person  except  the  general  partner. 


CHAPTER  XXI. 

CHATTEL  MORTGAaES. 

Chattel  mortgages  may  be  had  upon  all  property,  goods  or 
chattels  not  <lofined  'jy  statute  to  be  real  estate. 

A  chattel  mortgage  is  void  as  against  creditors  of  the  mort- 
gagor, and  subsecjuent  purchasers  and  incumbrances  of  the 
property  in  good  faith  and  for  value;  unless, 

1.  It  is  accompanied  by  the  affidavit  of  the  ujortgaguv 
that  it  is  made  in  good  faith,  and  without  any  design  to  hin- 
der, delay  or  defraud  ereditois. 

2.  It  is  acknowledged  or  proved,  cet titled  and  recorded  in 
like  manner  as  gi-ants  of  real  property. 

If  the  mortgagor  of  any  pe'rsonal  prop<.>rty  mortgaged  in 
pursuance  of  the  provisions  of  this  chapter,  while  such  mort- 
gage remains  unsatisfied,  in  whole  or  in  part,  willfully  removes 
from  the  county  or  counties  where  the  mortgage  is  reconled, 
destroys,  cancels,  sells,  or  in  imy  manner  disposes  of  the  prop- 
erty m«trtgaged,  or  any  part  thereof,  without  consei't  of  the 
liolder  of  said  moi-tgage,  is  guilty  of  larceny,  and  such  sale  or 
transfer  is  void. 


Chap.  22] 


Idaho. 


CHAPTER  XXII. 
INTEREST. 

Parties  may  agree  in  w  ;ng  for  the  payment  of  any  rate 
of  intere.st  on  money  due  ov  to  beoine  duo  on  any  contract 
not  exceeding  the  sum  of  one  and  one-liaif  per  cent,  per  month ; 
any  judgment  on  said  contract  bears  ten  per  cent,  per  annum. 
Any  viohition  '^■.y  charging  a  greater  rate  of  mteri-st  than 
above  specitiod  works  a  forfeiture  of  ten  cents  on  the  hun- 
dred by  the  year  for  the  benefit  of  the  school  fund. 

The  plaintiff  is  entitled  to  judgment  on  such  contracts  for 
the  principal  sum  less  all  payments  of  principal  or  interest 
theretofore  made,  and  without  Interest  or  costs.  The  (-ourt 
must  enter  judgn»ent  in  said  action  for  ten  per  cent,  per 
annum  upon  the  entire  principal  of  said  contract  against  the 
defendant  in  favor  of  the  Territory,  for  the  use  of  the  .school 
fund  of  the  county,  whether  the  unlawful  interest  is  contested 
or  not. 


(Is  or 


mort- 
)f    the 


dt.'d  in 

vged  in 
mort- 
re  moves 
■ecorded, 
le  prop- 
of  the 
sale  ov 


CHAPTER  XXIII. 
OP  PROCEEDINGS  IN  INSOLVENCY. 

Every  insolvent  debtor  may,  upon  compliance  with  the  pro- 
visions of  this  title,  be  discharged  from  his  debts  and  liabilities. 

An  insolvent  debtor,  owing  debts  exceeding  in  amount  the 
sum  of  three  hundred  lollars,  may  apply  by  petition  to  the 
District  Court  of  the  county  in  which  he  has  resided  for  six 
months  next  preceding  the  tiling  of  his  petition,  to  be  dis- 
charged from  his  debts  and  liabilities.  In  his  petition  lu-  nnist 
set  forth  his  place  of  ivsidence,  his  inability  to  pay  all  his  debts 
in  full,  his  willingness  to  surrender  all  his  estate  and  eiii?cts  for 
the  bonetit  of  his  creditors,  and  his  desire  to  ol)tain  a  dl«(c}mrge 

from  his  debts  and   lialiilities,  and  must  anriev  ♦!  t<\  a  .scheil- 

ule  a>id  inventory  and  valuation  in  compli*"*!'  the  pro- 

visions of  this  title.     The  iiling  of  such  pctiikm  m  an  act  of  in- 


246 


Idaho. 


[Part  G 


;*   .^i 


m   .  ii ' 


solvency,  and  thereupon  such  petitioner  must  be  adjudged  an 
insolvent  debtor.  The  petition,  schedule  and  inventory  must 
be  verified  by  the  affidavit  of  tiie  petitioner  annexed  thereto. 

Upon  rcceiviiij,'  and  tilinfjf  such  petiti(m,  .schedule  and  in- 
ventory, the  Coui't  or  the  Judge  thereof,  must  make  an  order 
declaring  the  petitioner  in.solvent,  and  directing  the  Sheritt  of 
the  county  to  take  possession  of  all  the  estate,  real  and  j)er- 
sonal,  of  the  debtor,  except  such  as  may  be  by  law  exempt 
from  execution,  and  of  all  his  deed,s,  vouchers,  books  of  account 
and  papers,  and  to  keep  the  same  .safely  until  the  appointment 
of  an  as.signee.  Such  onler  must  further  forbid  the  payment 
of  any  debts,  and  the  delivery  of  any  property  belonging  to 
such  debtor,  to  him,  or  for  his  use,  and  the  transfer  of  any 
property  l»y  him;  and  mu.st  further  appoint  a  time  and  place 
for  a  nu.'oting  of  the  creditors  to  prove  their  debts  and  clioose 
one  or  mon;  assignees  of  the  estate,  which  must  not  be  less 
than  thirty  days  after  the  making  of  saiil  order,  and  shall  des- 
ignate a  newspaper  or  newspapers  of  general  circulation  in 
which  publication  thereof  mu.st  be  nmde.  Upon  the  granting 
of  said  order,  all  proceedings  against  the  .said  in.solvent  are 
stayed. 

The  Clerk  of  Court  shall  publi.sh  a  copy  of  said  order,  and 
.serve  the  same  through  the  U.  S.  mail,  postage  prepaid,  or 
personally,  on  all  creditors  named  in  the  .schedtde.  At  a  mei.'t- 
ing  of  the  creditors  in  open  Court,  those  creditors  who  hii\ c 
proven  their  clainvs  nuist  proceed  to  elect  one  assignee,  who 
must  be  a  res<d(uit  of  the  county  where  the  in.solvent  resitles 
or  has  carried  on  business.  The  opinion  of  a  majority  in 
amount  of  claims  must  prevail. 

if  the  creditors  fail  to  appoint  an  assignee  at  the  time  fixed, 
or  if  the  assignei?  fails  to  «|iinlit'y.  the  Couit  or  Juflge  may 
appoint  and  fi.^  tin.'  amount  of  bonds. 


The  Assignee  has  Power. 


1.     To  Nue  in  his  own  name,  and  recover  all   the  estate, 
4|ft)tH,  and  thing-i  in  action,  belonging  or  due  to  .such  debtor, 


Chap.  23] 


Idaho. 


247 


and  no  set-oft'  or  co\uitcr  claijii  must  he  allowed  in  any  such 
suit  for  any  debt,  unless  it  was  owinj^  to  such  creditor  l»y  such 
debtor  at  the  time  of  tlie  adjudication  of  his  insolvency. 

2.  To  take  into  his  possession  all  the  estate  of  such  debt- 
or, except  property  exempt  by  law  from  execution,  whether 
delivered  to  him  or  afterwards  discovered,  and  all  book.s, 
vouchers,  evidences  of  indebtedness,  and  securities  belon,<,'injr 
to  the  same. 

3.  From  time  to  time  to  sell  at  public  Jiuction  all  the  es- 
tate, real  and  pei\sonaI,  vested  in  him  as  such  assignee,  as  or- 
dered by  the  Court. 

4.  On  such  sales  to  execute  thr  necessary  conveyances 
and  bills  of  .sale. 

o.  To  n.'deem  all  valid  mort;ra*;es  and  conditional  con- 
tracts,  and  all  valid  pledges  of  personal  property,  and  to  .sat- 
isfy any  judgments  which  may  be  an  ineund)rance  on  any  pro- 
perty sold  by  him,  or  to  sell  such  projierty  subject  to  such 
mortgage,  contracts,  pi  ;dges  or  judgment.s. 

(5.  To  settle  all  matter-^  and  accounts  between  such  debtor 
ami  his  debtors,  subject  to  the  approval  of  the  Court. 

7.  ITnder  the  order  of  the  Court  appctinting  him,  to  com- 
compound  with  any  person  indebted  to  such  debtor,  and 
thereupon  to  dischai'ge  all  demands  against  such  per.son. 

H.  To  have  and  recover  from  any  per.son  receiving  a 
conveyance,  gift,  transfer,  payment  or  assignment,  made 
fraudulently  or  contrary  to  any  provision  of  thi**  title,  the 
propei'ty  thereby  transfered  or  assigned,  or  in  ca.se  a  ilelivery 
of  tlw  property  cannot  be  had,  to  recover  the  value  thereof. 

At  tlie  expiration  of  throe  months  (and  earlier,  if  the  .Fudge 
.so  direct)  the  assignee  nnist  exhibit  to  the  Judge  and  the 
creditors,  and  tile  just  and  true  acccounts  of  all  his  receipts 
and  payments  verified  by  his  oath,  and  a  statement  of  the 
property  outstanding,  with  the  cause  of  its  outstanding;  and 
stating  what  sum  remains  in  bis  po.sse.ssion,  and  thereupon  a 
dividend  shall  be  made,  unle.ss,  for  cause  show-n,  the  (Jonrt  or 
Judge  otherwise  order.     Two  or  more  persons  who  are  parties 


p 


248 


Idaho. 


[Part  G 


ill  liusinc'ss  may  ho  udjudgoil  insulvt-ut,  cither  on  the  petition 
of  Hucli  partners,  or  any  one  of  tlieni. 

The  provisions  of  this  law  apply  to  corporations,  and  upon 
l)etition  of  any  oificer  of  any  corporation  duly  autliorized 
by  the  vote  of  the  hoard  of  directors  or  trustees,  at  a  meeting 
specially  called  for  that  purpose,  or  by  the  assent  in  writing 
of  a  majority  of  the  directors  or  trustees,  as  the  cast;  may  be, 
the  like  proceedings  shall  be  had  and  taken  as  are  provided  in 
the  case  of  individual  debtors. 

No  creditor  proving  his  debt  or  claim  mu.st  be  allowed  to 
maintiiin  any  .suit  at  law  or  in  e(|uity  therefor  against  the 
diibtor,  but  is  deemed  to  have  waived  all  right  t)f  action  and 
suit  against  him,  and  all  proceedings  alreacly  connnenced  are 
deemed  to  be  <lischarged  and  surrendered  thereby;  pro- 
vided, that  no  valid  lien  existing  in  good  faith  thereunder 
is  thereby  affected;  and  further  provided,  that  a  creditor 
proving  his  debt  or  claim  is  not  held  to  have  waived  his  right 
of  action  or  suit  against  the  debtor,  where  a  discharge  is 
refused,  or  the  proceedings  are  determined  witlumt  a  discharge. 

All  creditors  whose  debts  are  duly  jjroved  »ind  allowed  are 
entithnl  to  share  in  the  property  and  estate  proYnta,  without 
priority  o)'  preference  whatever,  other  than  as  [)rovided  in  this 
title. 

At  any  time  after  the  expiration  of  three  months  fiom  the 
adjudication  of  in.solvency,  the  debtor  miiy  apply  to  the  Court 
for  a  discharge  from  his  debts,  and  the  Co\n't  must  thereu])()n 
order  notice  to  be  given  to  all  creditors  who  have  proved  their 
dfl»ts,  to  appear  on  a  day  appointed  for  that  |>urpose,  and  show 
cause  why  a  di'charge  should  not  be  granted  the  debtor;  said 
notice  nnist  be  given  by  mail,  and  by  publication  at  least  once 
a  week  for  foin' wrcks,  in  a  newspajur  pnlilished  in  the  county, 
or  if  then;  be  none,  ii'.  a  newspaper  publishccl  nearest  sucii 
county;  provided,  tluu  if  no  del»ts  have  been  pioveii,  such 
notice  is  not  recpiired. 

No  discharge  nnist  be  granted,  or  if  granted  is  valid,  if  tlu' 
debtor  has  sworn  falsely  in  hisatlidavit  aiuiexcd  to  his  petition 
.schedule  or  inventory,  or  upon  any  examination  in  the  course 


Chap.  23] 


Id.mi 


(). 


249 


of  the  proceodinfjs  in  insolvency,  in  rchition  to  any  iniitcrial 
fact  concL'rnini,'  hi.s  estate*  or  his  dehts,  or  to  any  other  material 
fact  or  if  he  lias  concealed  any  ])art  of  his  estate,  or  ettects,  or 
any  books  or  writin<,'s  relating'  thereto;  or  if  he  has  been  <^uiit3' 
of  any  fraud  or  willful  nejjjlect  in  the  care,  custody  or  ilelivery 
to  the  assifjnce  of  Mie  property  bel()nifiii«.f  to  him  at  the  time  of 
the  presentation  of  his  petition  and  inventory,  exerptin^  such 
property  as  he  is  peiinitted  to  retain  under  the  provisi()r,«  of 
this  title;  or  if  he  has  caused  or  pernntted  any  loss  or 
destruction  thereof;  or  if,  within  one  month  before  the 
commencement  of  such  jjroceedinjrs,  he  has  procured  his  lands, 
goods,  mone}',  or  chattels  to  be  attaciied,  or  seized,  on  execu- 
tion; or,  if  he  has  tlestroyed,  mutilated,  altered,  or  falsified  any 
of  his  books,  documents,  papers,  writings,  or  securities,  oi"  has 
made  or  been  privy  to  the  making  of  any  false  or  fraudulent 
entry  in  any  book  of  account  or  other  document  with  intent 
to  defraud  his  creditois;  or  if  he  has  made  any  fraudulent  gift, 
transfer,  conveyance,  or  assignment  of  any  part  of  his  proper- 
ty, or  has  admitted  a  false  or  fictitious  debt  against  his  estate; 
or  if,  having  knowledge  that  any  person  has  proven  such  false 
or  fictitious  debt,  ho  has  not  disclosed  the  sauie  to  his  assignee 
within  one  month  after  such  knowledge;  or  if,  btMiig  a  mer- 
chant or  tradesman,  he  has  not,  subsecpiently  to  the  passage  of 
this  title,  kept  proper  books  of  »ceount:  or  if  he  or  any  other 
person  on  his  account,  or  in  his  behalf,  has  influenced  the 
action  of  any  crulitor  at  any  stage;  of  the  jnoceedings,  by  any 
pecuniary  consideraiion  or  obligation;  oi-  if  In-  has,  in  contem- 
plation of  iKJComing  insolvent,  made  any  ple«lge,  transfer,  &>r 
signinent,  or  conveyance  of  any  part  of  his  property.  <lirect.ly 
or  indirectly,  absolutely  or  conditionally,  for  the  purpose  of 
preventing  the  property  from  coming  into  tlie  hands  of  tlie 
ussignei',  or  of  being  distributi'd  uuilt-r  this  title  in  satisfa«'tion 
of  his  deiits;  or  if  hi'  has  been  convicted  of  any  misdemeanor 
under  this  title;  or  has  l)een  guilty  of  fraud  ct^ntrary  to  the  true 
intent  of  this  title;  or  has  received  the  heni'tit.s  nf  thin  or  any 
other  act  of  itisolvency  or  bankruptcy  within  threi-  years  next 
preceding  his  a])plication  for  discharge,  mid   before  any  dis- 


250 


Idaho. 


•1| 


[Part  6 


charge  is  granted,  the  debtor  must  take  and  subscribe  in  oath 
to  the  ettect  that  lie  lias  not  done,  suffered  or  been  privy  to 
any  act,  matter  or  thing  specified  in  this  title,  as  ground  for 
with(h'awing  sucii  discharge,  or  as  invalidating  such  discharge 
if  granted. 

No  debt  created  by  fraud  or  embezzlement  of  the  debtor, 
or  by  his  defalcations  as  a  public  officer,  or  while  acting  in  a 
judiciary  character,  and  no  indebtedness  or  liability  for  fimds, 
deposits,  or  goods  received  as  a  banker,  broker,  commission 
merchant,  or  factor,  can  be  discharged  under  this  title,  but  the 
debt  may  be  proved,  and  the  dividend  thereim  is  a  payment  on 
account  of  said  debt;  and  no  discharge  granted  under  this  title 
releases,  discharges  or  effects  any  person  liable  for  the  same 
debt  for  or  with  the  debtor,  either  as  partner,  joint  contractor, 
indorser,  surety  or  otherwise. 

The  refusal  of  a  discharge  to  the  debtor  does  not  effect  the 
administration  and  distribution  of  his  estate  under  the  provis- 
ions of  this  title. 

When  an  attachment  has  been  made,  and  is  not  diss*)lved 
before  the  commencement  of  proceedings  in  insolvency,  or  is 
dissolved  by  an  undertaking  given  by  the  defendant,  if  the 
claim  upon  which  the  attachment  suit  was  commenced  is 
proved  against  the  estate  of  the  debtor,  tlie  plaintiff"  may  prove 
the  legal  costs  an<l  disbursenjcnts  of  the  suit,  and  of  the  keep- 
ing of  the  pi'0[)erty,  and  the  amount  thereof  is  a  preferred  d(;bt. 

An  appeal  may  be  taken  to  the  Supremo  Court  in  the  fo  - 
lowing  cases: 

1.  Allowing  or  rejecting  a  creditor's  claim,  in  whole  or 
in  part. 

2.  Overruling  a  motion  for  a  new  trial. 

3.  Settling  an  account  of  an  assignee. 

4.  Against  or  in  favor  of  setting  apart  homestead  or  other 
property  claimed  as  exempt  from  ex<'eution. 

').     Granting  or  refusing  a  dischHrg(!  to  the  debtor. 
No  assignment  of  any  insolvent  del»tor,  otherwise  than  as 
provided  in  this  title,  is  legal  or  binding  on  creditors. 


PART  VII. 


Wyoming  Territory. 


Prepared  Expressly  for  this  Work  by  O.  N.  Potter,  Cheyenne. 


CHAPTER  I. 
COURTS  AND  THEIR  JURISDICTION. 

The  Courts  provided  for  tliis  Territory  are  ii  Supreme 
Court,  Dist'-ict  Courts,  Probate  Courts,  ami  Justices  of  the 
Peace. 

The  Supreme  Court  lias  uo  oriofiual  jurisdiction,  e.\cept  in 
habeas  corpus  cases.  It  exercises  an  appeUate  jurisdiction, 
principally  in  cases  cominjf  up  from  the  District  Courts. 

The  District  Courts  have  chancery  and  common  law  juris- 
diction, anil  jurisdiction  in  appeals  from  the  Justice  an«l  Pro- 
bate Courts. 

Th(!  Probate  Court  has  no  jurisdiction  except  over  probate 
business  proper. 

The  Justices  of  the  Peace  have  no  jurisdiction  of  anv  mat- 
ter  in  controversy  where  the  title  or  boinidaries  of  land  nuiy 
be  in  dispute,  or  where  the  debt  or  sum  claimed  shall  exceed 
three  hundred  tlollars. 


252 


Wyoming. 


[Part  7 


« 


CHAPTER  II. 
TERMS  OF  COURTS,  WHEN  AND  WHERE  HELD. 

The  Territory  is  divided  into  three  judicial  Districts:  Lar- 
amie, Converse  and  Crook  Counties  compose  the  first;  Albany, 
Sheridan  and  Joli  ison  the  second;  Uinta,  Sweetwater,  Fre- 
mont anil  Carbon  the  third.  Terms  of  Court  are  held  in  each, 
as  follows: 

At  Cheyenne,  connnoncing  on  the  fourth  Monday  of  May 
and  second  Monday  of  November  of  each  year.  Crook,  first 
Tuesday  of  Aut^ust. 

At  Laramie,  commencing  on  the  second  of  March  and  Octo- 
ber of  each  year. 

At  Buffalo,  Johnson  County,  fourth  Monday  of  June,  sec- 
ond Monday  of  December. 

At  Rawlins,  commencing  on  the  second  Monday  of  May 
and  second  Monday  of  October  of  each  year. 

At  Green  River,  on  the  fourth  Monday  of  April  and  Sep- 
temV)er  of  each  year. 

At  Kvanstown  commencing  on  the  first  Monday  of  April 
and  September  of  each  year. 

At  Lander,  first  Monday  of  July.  In  Converse  and  Sheri- 
dan Counties  no  regular  terms  are  provided  for  at  present. 

Supreme  Court  meets  annually  on  the  first  Monday  of 
January'. 


CHAPTER   III. 


COMMENCEMENT  OF  ACTIONS,  TIME  TO 
ANSWER,   PLACE  OF  TRLA.L. 

Actions  are  eommenccil  by  filing  in  the  ofiice  of  the  Clerk 
of  the  proper  Court  a  petitiim,  and  causing  a  summons  thereon 
to  be  issued.     The  summons  is  returnable  on  the  second  Mon- 


Chap.  H] 


Wyoming. 


2-)3 


day  after  the  day  of  its  date,  and  tlie  answer  or  deuuirrer  of 
the  defendant  shall  be  fded  on  ur  before  the  third  Saturday 
after  the  return  day  of  the  sunnuuns. 

Civil  actions  must  be  tried  in  the  county  in  which  they  are 
connnenced,  unless  upon  application  for  a  chanj^'e  of  \enue, 
based  upon  sufficient  reasons,  tl»e  ('ourt  orders  the  place  of 
trial  Lo  be  changed;  and  in  such  case  the  (.ourt  must  send  tlie 
cause  to  the  most  convenient  county. 


CHAPTER   IV. 


LIMITATION  OP  ACTIONS. 


Actions  for  the  recovery  of  real  property  can  only  be 
brought  witliin  ten  years  after  the  cause  of  action  shall  have 
accrued,  except  actions  of  forcible  entry  and  detainer,  or  f(jrc- 
ible  and  inilawful  detenticm,  only  of  real  property,  which  must 
be  commenced  within  two  years  after  the  cause  of  action  shall 
have  accrued. 

An  action  upon  a  specialty,  or  any  agreement,  contract  or 
promise  in  writing,  or  on  a  foreign  judgment,  must  be  brought 
within  five  years.  And  actions  upon  contract  not  in  writing, 
express  or  implied,  or  upon  a  liability  created  by  statute,  other 
than  a  forfeiture  or  penalty,  must  lie  brought  within  four  years 
after  the  cause  of  action  shall  have  accrued. 

Causes  of  action  arising  out  of  the  Territory  against  a  non- 
resident are  barred  two  years  after  the  debtor  becomes  a 
resident. 


W 

ithin 

Fdin 

■  VfdrK: 

Actions  for 

tres|)ass 

upon 

real 

jiroperty ; 

for  tn 

king. 

detain- 

ing 

or  injtn-ing 

personal 

property; 

for  injury 

to  rig 

hts  of 

])laint- 

iH- 

not   arising 

on  coni 

bract. 

and 

not  hereuuifter 

enunierated;                         1 

ant 

actions  for  relief 

on  grouiul 

of  fraud 

after 

disc(»ver}-  of                          | 

the 

fraud. 

! 

204 


Wyoming. 


[Part  7 


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Within  One  Year: 

Actions  for  libel,  slander,  assault  and  battery,  malicious 
prosecution  or  false  imprisonment;  actions  for  penalty  or  for- 
feiture. 

Within  Ten  Years: 

Action.*?  upon  official  bond  or  undertaking  of  an  executor  or 
guardian.  Sheriff"  or  other  officer,  or  upon  an  attachment,  in- 
junction bond,  or  upon  bond  given  in  arrest,  or  any  case  what- 
ever required  by  statute. 


CHAPTER   V. 

ATTACHMENTS. 

The  creditor  in  a  civil  action  for  the  recovery  of  money 
may,  at  or  after  the  commencement  thereof,  by  filinir  the 
necessary  affidavit,  have  an  attachment  against  the  property 
of  the  debtor,  and  upon  the.  grounds  herein  stated : 

1.  When  the  debtor,  or  one  of  several  debtors,  is  a  foreign 
corporation,  or  a  non-resident  of  this  Territory,  or  about  to 
become  a  non-resident. 

2.  Has  abscoiided  with  the  intent  to  defraud  his  creditors. 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service 
of  a  summons. 

4.  So  conceals  himself  that  a  summons  cannot  be  served 
upon  him. 

5.  Is  about  to  remove  his  property  or  a  part  thereof,  out 
of  tlu!  jurisdiction  of  t'ne  Court,  with  the  intent  to  defraud  his 
cre<litor.s. 

0.  Is  about  to  convert  his  property,  or  a  part  thereof,  into 
money,  for  the  purpose  of  placing  it  beyond  the  reach  of  his 
creditors. 

7.  Has  property  or  rights  in  action  which  he  conceals. 

8.  Has  assigned,  removed  or  disposed  of,  or  is  about  to 
dispose  of  his  property,  or  a  part  thereof,  with  the  intent  to 
defraud  his  ortiditors. 


Chap.  5] 


Wy<)MIN(». 


255 


9.  Fraudulently  or  crimlimlly  contrnctod  the  deltt  or  in. 
curred  the  ohlij^ation  for  which  .suit  in  about  to  Ik?  or  has  hccn 
brought. 

In  all  cases  the  writ  will  not  bi-  isssed  1)V  the  Clerk  of  the 
Court  until  thtM'e  has  been  executed  and  Hied  in  his  office  an 
undertakint,'  with  sureties  approved  by  him,  in  double  tlie 
amount  of  plaintitt's  claim,  to  the  eti'ect  that  plaintiH"  shall  pay 
all  dama<.jes  which  dc^fendant  may  sustain  by  reason  of  the  at- 
tachiuont,  if  the  writ  be  wrongfully  obtained. 


CHAPTER   VI. 
ARREST  IN  CIVIL  ACTIONS. 

A  defendant  in  a  civil  action  can  be  arrested  before  judg- 
ment in  the  following  manner  (but  this  provision  do(^s  not  ap- 
ply to  proceedings  for  contempt,  nor  to  actions  pro.secuted,  or 
iudjiments  obtained  in  the  name  of  the  Territory  of  Wyoming, 
to  recover  fines  or  penalties): 

An  order  of  arrest  is  made  by  the  Clerk  of  Court  when 
there  is  filed  in  his  ofiice  an  atlidavit  of  the  plaintifi",  his  auth- 
orized agent  or  attorney,  made  before  any  Judge  or  Clerk  of 
any  Court  of  the  Territory,  or  a  Justice  of  the  Peace,  stating 
the  nature  of  the  plaintiff's  claim,  that  it  is  just,  and  the 
amount  thertjof,  as  nearly  as  may  be,  and  establi.shing  one  or 
more  of  the  following  particulars: 

1.  That  the  defendant  has  removed,  or  begun  to  remove, 
any  of  his  property  out  of  the  jurisdiction  of  the  Court,  with 
intent  to  defraud  his  creditors. 

2.  That  he  has  begun  to  convert  his  property,  or  a  part 
thereof,  into  money  for  the  purpose  of  placing  it  beyond  the 
reach  of  his  creditors. 

J}.  That  he  has  property,  or  rights  of  action,  which  he 
fraudulently  conceals. 

4.  That  he  has  assigned,  removed  or  disposed  of  his  pro- 
perty, or  a  part  thereof,  with  intent  lo  defrauil  his  creditors. 


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5.  That  he  fraudulently  contracted  the  debt,  or  incurred 
the  obli<:fation,  for  which  suit  is  about  to  be  or  has  been 
brought. 

6.  That  the  money,  or  other  valuable  thing,  for  which  a 
recovery  is  sought  in  the  action,  was  lost  by  playing  any  game 
or  by  means  of  a  bet  or  wager.  The  affidavit  must  contain  a 
statement  of  the  facts  claimed  to  justify  the  belief  in  the  exist- 
ence of  one  or  more  of  such  particulars. 

Before  the  order  of  ari'est  is  issued  there  must  be  executed, 
by  sufficient  sureties  of  the  plaintiff,  a  written  undei-taking  to 
the  effect  that  the  plaintiit  shall  pay  to  the  defendant  all  dam- 
ages, not  exceeding  douljle  the  amount  of  plaintiff's  claim 
stated  in  the  affidavit,  which  he  may  sustain  by  reason  of  the 
arrest,  if  the  order  prove  to  have  been  wrongfully  obtained. 

Bail  may  be  given  by  the  defendant  on  his  arrest,  or  at  any 
tin;  afterward,  before  judgment.  It  shall  be  done  by  causing 
sufficient  bail  to  execute  a  written  undertaking  to  the  plaintiff 
in  the  pi;esence  of  the  sherifl'  to  the  effect,  if  judgment  be 
rendered  in  the  action  against  the  defendant  he  will  render 
himself  amenable  to  the  process  of  the  Com-t  thereon.  Bail 
may  be  objected  to  for  insufficiency  at  any  time  within  ten 
days  by  serving  upon  the  sheriff  a  written  notice  to  that  effect. 

After  judgment  an  execution  against  the  person  of  the 
debtor  may  be  issued  upon  any  judgment  for  the  payment  of 
money. 

1.  Where  the  debtor  has  removed  or  begun  to  remove  any 
of  his  property  out  of  the  jurisdiction  of  the  Court,  with  iritent 
to  prevent  the  collection  of  the  money  due  on  the  judgment. 

2.  When  he  has  property  or  rights  in  action,  evidence  of 
debt,  or  interest  or  stock  in  a  corporati(jn  or  company,  which 
he  fraudulently  conceals  with  like  intent. 

8.  When  he  has  assigned  or  disposed  of  all  or  part  of  liis 
property,  or  I'ights  in  action,  or  has  converted  the  sanu;  into 
money  with  intent  to  defraud  his  creditors,  or  with  intent  to 
prevent  such  jiroperty  from  being  taken  in  execution. 

4.  When  he  fraudiilentiy  contracted  the  debt  upon  which 
judgment  is  rendered. 


Chap.  G] 


Wyoming. 


257 


0.  Wlion  the  judgment  was  reiidored  for  money,  or  otliev 
vahiahle  thino-  lost  by  playing  at  any  game,  or  by  means  of 
any  bet  or  wager. 

G.  When  lie  was  arrested  on  an  order  before  judgment, 
and  has  not  been  discharged  as  an  insolvent  debtor,  or  the 
order  has  not  been  set  aside  as  improperly  made. 

Such  execution  against  the  person  can  be  issued  only  wlien 
allowed  by  the  District  Court  or  any  Judge  thereof,  upon  be- 
ing satisfied,  by  affidavit  of  tlie  judgment  creditor  or  liis  attoi'- 
ney  and  such  other  evi<lence  as  may  be  presented,  of  tlie  (^\ist- 
ence  of  one  or  more  of  the  particulars  mentioned  above. 

A  Justice  of  the  Peace  may  issue  an  execution  against  tlic 
person  of  the  judgment  debtor  upon  being  .satisfied  of  the  exist- 
ence of  one  or  more  of  the  same  particulars,  by  like  affidavit 
and  evidence. 


CHAPTER   VII. 


JUDGMENT  LIENS. 


A  judgment  is  a  lien  on  the  lands  and  tenements  of  a  judg- 
ment debtor  from  the  first  day  of  the  term  at  which  it  i,s  ren- 
dered; but  judgments  by  confession,  p.xid  judgments  rendered 
at  the  same  term  at  which  the  action  is  commencetl,  bind  such 
lands  only  from  the  date  of  their  lendition. 

If  execution  is  not  sued  out  within  five  years  from  the  date 
of  the  rendition  of  judgment,  such  judgment  becomes  dormant, 
and  cea.ses  to  operate  as  a  lien.  The  judgment  may  subse- 
quently be  revived,  but  the  lien  is  not  restored,  except  from 
the  date  of  revivor. 

If  execution  is  not  taken  out  and  levied  within  one  year 
after  rendition  of  judgment,  tlie  judgment  shall  not  operate  as 
a  lien  upon  estate  of  any  debtor  to  the  jjrejudice  of  any  bond 
fide  judgment  creditor.  The  lien  is  not  defeated,  however, 
where  failure  to  Uvke  out  execution  is  caused  by  appellate  pro- 
ceedings. 


w 


258 


Wyoming. 


[Part  7 


*,  !i 


i  m 


CHAPTER  VIII. 

EXECUTIONS,   SALE,  REDEMPTION  AND 
EXEMPTIONS. 


"1 


Executions  are  of  three  kinds: 

1.  Against  the  property  of  the  judgment  debtor. 

2.  Against  his  person. 

3.  For  tiie  delivery  of  the  possession  of  real  property,  witli 
damages  for  withholding  the  same  and  costs. 

The  officer  having  the  writ  must  levy  first  on  the  goods 
and  chattels  of  the  debtor,  but  if  no  goods  be  found,  he  shall 
endorse  on  the  writ  "no  goods,"  and  forthwith  levy  the  writ  of 
execution  upon  the  lands  and  tenements  of  the  debtor  liable  to 
satisfy  the  judgment. 

The  officer  may  sell  goods  and  chattels  seized,  by  first  pul)- 
lishing  notice  of  the  time  and  place  of  sale  for  a  period  of  ten 
days.  Notice  of  the  sale  of  lands  and  tenements  must  be  pub- 
lished four  weeks  prior  to  the  sale. 

There  is  now  in  this  Territory  no  statute  providing  for  the 
redemption  of  property,  eith  n*  real  or  personal,  sold  on  execu- 
tion. 

The  exemption  from  levy  or  seizure,  are  a  homestead  not 
exceeding  in  value  $loO(),  so  long  as  it  is  actually  occupied  as 
such  by  the  dobt(^r  and  his  family,  the  value  to  be  ascertained 
by  appraisers. 

So,  too,  the  following  personal  property,  when  owned  by 
the  head  of  a  family  who  is  resi<ling  with  the  same:  Furniture, 
bedding  and  provisions  and  such  other  articles  as  the  debtor 
may  select,  not  exceedii  g  in  value  $.>00. 

There  is  also  exempt  the  necessary  wearing  apparel  of  everj' 
person,  not  exceeding  in  value  $i')0. 

The  tools,  team  and  implements,  or  stock  in  trade  of  any 
mechanic,  miner,  or  other  person,  used  and,  kept  for  the  pur- 
pose of   carrying  on   his  trade  or   business,  not  exceeding  in 


Chap.  8] 


Wyoming. 


259 


value  S300.     Also  the  library,  instruments  and  implements  of 
any  professional  man,  not  exceeding  in  value  $800. 

There  is  no  exemption  in  favor  of  a  person  not  an  actual 
resident  of  the  Territory,  nor  ono  "bout  to  remove  or  abscond 
therefrom.  And  no  article  or  property  is  exempt  from 
attachment  or  sale,  upon  execution,  for  the  purchase  money 
of  said  article  of  property. 


witli 


CHAPTER  IX. 
PROCEEDINGS  IN  AID  OF  EXECUTIONS. 

Proceedings  in  aid  of  executions  may  be  had,  in  which  the 
debtor  may  be  examined  and  compelled  to  disclose  and 
a]i])ropriate  to  the  payment  of  the  judgment  any  property 
which  he  may  have  unjustly  refused  to  apply  to  that  purpose. 

A  receiver  may  be  appointed  to  take  and  dispose  of  such 
property  of  the  judgment  debtor  that  may  ^^e  unearthed  on 
examination,  either  legal  or  equitable,  and  appropriate  the 
proceeds  to  the  payment  of  the  judgment. 


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ding  in 


CHAPTER  X. 

SECURITY  FOR  COSTS. 

In  all  cases  where  the  plaintiff  is  a  non-i'esident  of  the 
county  in  which  the  action  is  brought,  he  nuist  furnish  security 
for  costs  before  commencing  such  action.  Security  need  not 
bo  furnished,  provided  costs  are  paid  as  they  accrue. 


CHAPTER  XI. 

APPEALS. 

In  actions  at  law,  final  judgments  and  orders  may  be 
revitnved  on  writ  of  error  or  petition  in  error  sued  out  at  any 
time  within  two  years  after  rendition. 


260 


Wyoming. 


[Part  7 


Where  the  jiulgment  or  decree  sought  to  be  reviewed  is  for 
the  payment  of  money  to  stu}'  execution,  security  must  be 
given  in  double  the  amount  of  the  decree  or  jutlgment.  In 
other  cases  the  amount  of  security  is  fixed  by  tlie  Court. 


CHAPTER  XII. 
ESTATES  OF   DECEASED  PERSONS. 

Estates  of  deceased  persons  are  settled  in  the  Probate 
Courts  throuu'h  the  usual  means  of  executors  and  administia- 
tors. 

Claims  against  the  estate  must  be  presented  within  one 
year  after  the  granting  of  letters  testamentary  or  of  adminis- 
tration, and  if  not  so  })resented,  are  forevi'r  barred. 

Every  executoi"  and  administrator  must  exhibit  a  .statement 
of  the  accounts  of  his  administrati(,n  for  settlement,  with 
proper  vouchers,  to  the  Probate  (-ourt,  at  its  first  term  aftcsr 
the  end  of  six  months  from  the  date  of  his  letters,  and  at  the 
corresponding  term  of  Court  every  six  months  until  adniinis- 
tration  be  completed. 


r  '■ 


CHAPTER  XIII. 
DEPOSITIONS. 

No  person  is  dis(iualiHed  as  a  witness  b}^  reason  of  his  in- 
terest in  the  event  of  suit. 

Depositions  may  be  taken  as  soon  as  a  case  is  conmienced, 
and  may  be  used  when  the  witness  doe.s  not  reside  in  the  county 
where  the  action  is  pending,  or  is  al)sent  therefrom;  or  when 
from  age  or  infirmity  or  imprisonment  of  the  witness  he  is  un- 
able to  attend  Court,  or  is  dead:  or  when  in  any  case  oral  ex- 
amination is  not  required. 


Chap.  13] 


Wyoming. 


2G1 


Tliey  may  be  taken  in  or  out  of  the  Territory,  before  a 
Justice  of  the  Peace,  Chancellor,  or  Judge  of  any  Court  of  rec- 
ord, Notary  Public,  Mayor,  Chief  Mai^istrate  of  any  city  or 
town  corporate,  a  Commissioner  appointed  by  the  Governor  of 
the  Territory,  or  any  person  authorizt'd  by  special  connnission 
from  the  Territory. 

They  may  be  taken  in  narrative  form,  or  by  questions  and 
answers.  In  all  cases  they  may  bo  taken  on  notice  or  com- 
nussion  i.ssued  by  the  Clerk  of  the  Court. 


CHAPTER   XIV. 

JUDICIAL  RECORDS. 

The  judicial  records  of  another  State  must  be  proven  in 
accordance  with  the  provisions  of  the  Act  of  Congress,  except 
judgments  of  Justices  of  the  Peace,  whose  proceedings  may  be 
authenticated  by  their  own  certiHeate,  supported  by  the  official 
certificate  of  the  Clerk  of  any  Court  of  Record  in  the  county 
in  which  such  Justice  resides,  that  his  sinnature  is  genuine 
and  that  he  is  an  acting  Justice  of  the  Peace  of  that  county. 


•■■fel 


il 


CHAPTER   XV. 

ACKNOWLEDGMENTS. 

Deeds  or  mortgages,  executed  within  this  Territor}',  of 
lands  or  any  interest  in  lands,  shrdl  be  executed  in  the  pres- 
ence of  GTv.  witness,  who  shall  subscribe  his  name  to  the  same 
as  such;  an;l  the  person  executing  such  deeds  or  mortgages 
may  acknowledge  the  execution  thereof  before  any  Judge  or 
Clerk  of  a  Coui  t.  of  Record,  or  before  any  County  Clerk,  or  be- 
fore any  Notary  Public  or  Justice  of  the  Peace  within  the 


'^m 


il    i 


wr 


2G2 


Wyoming. 


[Part  7 


Territory;  and  the  officer  taking  such  acknowledgment  shall 
indorse  thereon  a  certificate  of  the  acknowledgment  thereof, 
and  the  true  date  of  making  the  same,  under  his  hand  and  seal 
of  office,  if  there  be  one. 

If  any  such  deed  or  mortgage  shall  be  executed  in  any 
other  State,  Territory  or  District  of  the  United  States,  such 
deed  or  mortgage  may  be  executed  according  to  the  laws  of 
such  State,  Territory  or  District,  by  any  officer  authorized  by 
the  laws  of  such  State,  Territory  or  District  to  take  the 
acknowledgment  of  deeds  or  mortgages  therein,  or  before  any 
Commissioner  appointed  by  the  Governor  of  this  Territory  for 
such  purposes;  provided,  that  unless  the  acknowledgment  be 
taken  before  a  Coiiunissioner  appointed  by  the  Governor  for 
that  purpose,  or  before  a  Clerk  of  a  Court  of  record,  or  County 
Clerk,  such  deed  or  mortgage  shall  have  attached  thereto  a 
certificate  of  the  Clerk  or  other  proper  certifying  officer  of  the 
Court  of  record,  or  County  Clerk  of  the  county  or  district 
within  which  such  acknowledgment  was  taken,  under  the  seal 
of  his  office,  that  the  person  whose  name  is  subscribed  to  the 
certificate  of  acknowledgment  was,  at  the  date  thereof,  such 
officer  as  he  is  therein  represented  to  be;  that  he  knows  the 
signature  of  such  person  sul)scribed  thereto  to  be  genuine,  and 
that  the  deed  or  mortgage  is  executed  and  acknowledged 
according  to  the  laws  of  such  State,  Territory  or  District.  If 
any  such  deed,  mortgage  or  conveyance,  executed  as  aforesaid, 
be  acknowledged  before  a  Clerk  of  a  Court  of  record,  County 
Clerk,  or  Commissionei"  appointed  as  aforesaid,  then  the  officer 
taking  the  acknowledgment  shall  certify  that  such  deed, 
mortirafje  or  conveyance  is  executed  and  acknowledged  accord- 
ing  to  the  laws  of  such  State,  Territory,  district  or  county. 

Any  deed,  mortgage  or  conveyance  executed  in  any  other 
State.  Territory,  district  or  county,  which  shall  be  executed 
accordin<x  to  the  laws  of  this  Territory,  and  acknowledged 
before  a  Clerk  of  a  Court  of  record,  County  Clerk  or  Com- 
missioner appointed  as  afo  -esaid,  shall  have  the  same  effiict  as 
if  executed  and  acknowledged  within  this  Territory. 


Chap.  IG] 


Wyoming. 


263 


r    Com- 
itt'ect  as 


CHAPTER  XVI. 

LIMITED  PARTNERSHIPS. 

Limited  partnerships  may  be  formed  by  two  or  more  per- 
sons. There  may  be  general  partners,  so-called,  and  special 
partners.     Parties  forming  must  sign  a  certificate  stating: 

1.  The  name  under  which  it  is  to  be  conducted. 

2.  Nature  of  business  to  be  transacted. 

3.  Names  and  residences  of  the  parties,  specifying  wliich 
are  general  and  special. 

4.  Amoui;t  of  stock  eacli  special  partner  contributes  to 
the  conimon  stock. 

o.     Period  of  its  beginniiifj  and  ending. 

The  certificate  must  be  acknowledged  and  recorded  in  the 
County  Clerk's  office  of  the  county  in  which  principal  business 
is  to  be  done.  Ea^..  partner  must  also  make  an  affidavit  that 
the  sums  stated  in  the  certificate  have  been  actually  paid  in; 
the  certificate  must  be  published.  The  general  partners  only 
have  authority  to  transact  the  business.  The  general  partners 
are  liable  to  the  same  extent  as  general  partners  in  any  part- 
nership. 


CHAPTER  XVII. 

MARRIED  WOMEN. 

Married  women  retain  their  property,  real  and  personal, 
which  they  had  at  marriage,  or  which  they  acquire  thereafter, 
from  any  person  other  than  their  husband,  in  good  faith,  as 
their  own,  free  from  their  husband's  control,  and  free  from 
liability  for  his  debts.  They  may  bargain,  sell  and  convey 
persona,!  property  as  if  they  were  sole;  may  make  a  will;  be 
sued  and  sue  as  if  they  were  sole;  may  carry  on  any 
trade  or  business  on  their  own  account.  The  husband  is  not 
liable  for  the  debts  of  the  wife  contracted  before  marriage. 
When  judgment  is  rendered  against  both  for  the  tort  of  the 
wife,  the  judgment  must  be  satisfied  first  out  of  the  property 
of  the  wife,  if  she  have  any. 


i 


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it 


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2G4 


Wyoming. 


[Ptirt  7 


CHAPTER  XVIII. 

CHATTEL  MORTGAGES. 

Chattel  inortirjigus  must  bo  cxocuted  in  the  presence  of  one 
witness  and  acknowlodjretl  before  some  one  authorized  to  take 
ackno\vled|j;uu'nt  of  deeds,  and  Hied  in  the  otHco  of  the  County 
Clerk  of  the  county  where  the  |)r()perty  is;  and  it  then  be- 
comes a  lien  on  the  property  deseribetl  therein,  and  the  lien  is 
jvood  until  the  debt  secured  by  the  mortgage  is  due,  and  for 
two  months  tliereafter,  unless  before  expiration  of  the  two 
months  foreclosure  proceeilings  ho  commenced,  in  which  case 
lien  continues  until  termination  of  such  proceedings;  and  if  it  so 
provide,  the  property  mortgagiMJ  may  be  left  in  possession  of 
the  mortgagor.  All  goods  and  cliattels  may  be  moi-tgaged. 
A  chattel  mortgage  may  be  renewed  by  tiling  an  affidavit  be- 
fore the  expiration  of  sixty  days  after  it  is  due,  showing  own- 
ership and  amount  still  due,  and  is  then  good  for  another  year. 
A  like  affidavit  may  be  filed  each  year. 


CHAPTER  XIX. 

INTEREST  AND  USURY. 

The  legal  rate  of  interest  is  twelve  per  cent,  per  annum; 
but  any  rate  that  niay  be  agreed  on  is  legal.  Judgments  draw 
twelve  per  cent,  from  the  date  of  their  rendition. 


CHAPTER  XX. 

ASSIGNMENTS. 

An  insolvent  debtor  may  make  an  assignment,  and  is  con- 
sidered insohent  when  unable  to  pay  his  debts  as  they  become 
due. 

An  assignment  is  void  against  creditors  not  assenting  in 
the  following  cases. 


Chap.  20] 


Wyoming. 


265 


1.  If  it  <,'ive.s  proferonco. 

2.  It'  it  tonds  to  coerce;  any  creilitor  to  release  or  compro- 
.nise  liis  (leniand. 

;}.  It'  it  provide  for  the  payment  of  any  chiim  known  to 
be  false,  or  the  payment  of  more  upon  one  claim  than  is  known 
to  be  due. 

4.  If  it  reserve  to  the  assignor  any  interest  before  all 
debts  are  ])aid. 

5.  If  it  coni'ei-  upon  assignee  any  power  which,  if  exercised, 
might  delay  the  execution  of  the  trust. 

G.  If  it  exempt  him  from  liability  for  neglect  or  miscon- 
duct. 

The  deed  must  be  in  writino-  simied,  scaled,  acknowledged, 
and  recorded  in  the  office  of  the  Probate  Judge  of  the  proper 
county,  otherwise  it  is  void  against  all  parties  not  assenting 
thereto. 

The  assignor  must  make  and  file  an  inventory  of  the  estate 
within  twenty  days  after  the  assignment. 

The  assignee  must,  within  thirty  days  after  the  assignment, 
enter  into  bonds  to  be  fixed  by  the  Probate  Judge,  conditioned 
for  the  faithful  accounting  of  moneys  and  discharge  of  the  trust. 

After  six  months  from  date  of  assignment,  the  assignee  may 
be  re([uired  to  account  on  petition  of  anj''  creditor.  And  the 
probate  Judge  must,  as  soon  as  possible,  settle  the  estate. 

In  all  cases  where  the  assignor  complies  with  the  provisions 
of  the  Act,  any  creditor  accepting  from  the  assignee  his  divi- 
dend arising  from  the  property  of  the  assignor,  to  which  he 
would  be  entitled  under  any  assignment  made  under  the  Act, 
shall  release  the  assignor  from  all  further  liability  on  the  claim 
or  claims  on  which  said  payment  may  be  made. 


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'  »■ 

PART  VIII. 


Montana. 


Prepared  Expressly  for  this  Work  by  McOu^ 
Attorneys  at  Law,  Helena. 


eon  61,  Mclntire, 


CHAPTER  I. 
COURTS  AND  THEIR  JURISDICTION. 

The  Courts  of  the  State  are  a  Supreme  Court,  Di.strict 
Courts,  and  Justices  of  the  Peace.  There  are  also  the  U.  S. 
Circuit  Courts  and  the  U.  S.  District  Courts. 

The  Supreme  Court  has  appellate  jurisdiction  only. 

The  District  Courts  of  the  State  have  original  jurisdiction 
of  all  civil  cases  where  the  amount  in  controversy  exceeds 
fifty  dollars,  of  probate  matters,  and  of  all  felonies;  also 
appellate  jurisdiction  from  Justices'  Courts. 

Justices  of  the  Peace  have  jurisdiction  where  the  title  of 
land  is  not  in  dispute,  and  where  the  debt  or  sum  claimed  does 
not  exceed  three  hundred  dollars. 


CHAPTER  II. 

TIME    ALLOWED    DEFENDx.NT   TO    ANSWER  — 
PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

Time  Allowed  Defendant  to  Answer. 

Ten  days  if  served  in  the  county;  twenty  days  if  served 
outside  the  county,  but  in  the  district;  forty  days  in  all  other 
cases. 


£08 


Montana. 


Place  of  Trial  of  Civil  Actions. 


[Part  8 


Actions  for  recovery  of  real  estate,  or  for  injuries  thereto, 
for  partition  thereof,  or  for  foreclosure  of  mortgage  thereon, 
must  be  tried  in  the  county  where  the  same  is  situated. 

Actions  for  tlie  recovery  of  a  penalty  or  forfeiture  imposed 
hy  statute,  or  against  a  public  officer,  must  be  tried  in  the 
county  where  the  cause  arose. 

In  all  other  cases  the  action  is  to  be  tried  in  the  county 
in  which  tlie  defendant  may  reside,  or  in  the  county  where 
the  plaintiff  resides  and  the  defendant  may  be  found. 


lU    ' 


w. 


n 


CHAPTER  III. 
LIMITATION  OF  ACTIONS. 

Upon  a  judgment  or  decree  of  a  United  States  Court,  or  of 
any  State  or  Territory,  six  years 

Upon  any  contraat,  obligation  or  liability,  founded  upon  an 
instrument  of  writinn',  six  years. 

Acticjns  for  the  recovery  of  real  property,  or  the  possession 
thereof,  must  be  commenced  within  live  years. 

Actions  for  waste  or  trespass  upon  real  property;  for  a 
liability  created  by  statute,  other  than  a  penalty  or  forfeiture 
for  taking,  detaining  or  injuring  goods  or  chattels,  and  for  re- 
lief on  the  ground  of  fraud,  iinist  be  commenced  within  two 
3'ears. 

Actio?Ts  against  a  Sheriff,  Coroner  or  Constable,  for  any  act 
in  his  official  capacity,  must  be  commenced  witliin  two  years. 

Actions  upon  an  account,  contract,  obligation  or  liability 
not  founded  upon  an  instrument  of  writing,  must  be  com- 
menced within  three  years. 

An  action  for  libel,  slander,  assaidt,  battery,  or  false  im- 
prisonment, must  be  commcncecl  within  two  years. 

An  action  upon  a  statute  for  a  penalty  or  forfeiture,  or  an 
action  against  a  Sheriff  or  other  officer  for  the  escape  of  a 


Chap.  3] 


Montana. 


2G9 


prisoner,  arrested  upon  a  civil  process,  must  Le  commenced 
within  one  year. 

There  is  no  limitation  upon  the  right  to  maintain  an  action 
for  the  recovery  of  money  or  other  property  deposited  with 
any  bank,  banker,  trust  company,  or  savings  and  loan  .society 

Actions  for  relief  not  provided  for,  as  above,  must  be  com- 
menced within  three  years  after  the  cause  of  action  accrued. 

If  the  party  against  whom  the  action  accrues  is  out  of  the 
State  at  the  time,  the  statute  does  not  I'mi  until  his  return  and 
if,  after  the  action  has  accrued,  he  departs  from  the  .State,  the 
time  of  his  absence  is  not  a  part  of  the  time  limitetl  for  the 
commencement  of  an  action.  A  part  payment  revives  a  debt 
which  has  been  barred.  No  acknowledgment  or  promise  is 
sufficient  to  take  a  case  out  of  the  statute,  imless  it  be  in  writ- 
ing and  signeil  by  tlie  party  to  be  charged.  A  cause  of  action 
arising  in  any  other  State  or  Teri'itory,  and  barred  by  the  laws 
of  such  State  or  Territory,  cannot  be  maintained  here. 


CHAPTER  IV. 

ATTACHMENTS— ARRESTS  IN  CIVIL  CASES. 

Attachments. 

An  attachment  will  issue  in  all  cases  where  an  affidavit  is 
made  by  or  on  behalf  of  the  plaintiff',  that  the  defendant  is  in- 
debted to  Mie  plaintiff  upon  a  contract  for  the  payment  of 
money,  gold  dust  or  other  property  then  due,  which  is  not 
seciu'cd  by  a  mortgage,  lien  or  pledge  upon  either  real  or  per- 
sonal property:  and  upon  giving  an  undertaking  hi  double  the 
amount  of  the  debt  sought  to  be  recovered,  «...iless  the  sum 
claimed  exceeds  one  thousand  dollars,  in  which  case  the  under- 
taking is  ovdy  required  to  be  eipial  to  such  amount,  but  in  no 
CKHi  to  exceed  ten  thousand  dollars,  conditioned  that  the  plain- 
tiff will  pay  all  costs  that  maybe  awarded  to  the  defendant, 
and  all  damages  which  he  may  su.stain  by  reason  of  such  at- 


'ft'  5 


-,   I' 


270 


Montana. 


[Part  8 


tachment,  if  the  defendant  recovers  judgment,  or  the  Court 
finally  decides  that  the  plaintiff  was  not  entitled  to  an  at- 
tachment. 

Arrests  in  Civil  Cases. 

Arrests  may  be  had  in  all  cases  of  fraud,  or  when  the 
action  is  for  willful  injury  to  person  or  character,  or  to  pro- 
perty, knowing  the  property  to  belong  to  another. 


CHAPTER  V. 

JUDGMENT    LIENS,   EXECUTIONS,   EXEMPTIONS, 
SALE  AND  REDEMPTION. 

A  judgment  rendered  by  the  District  Court  is  a  lien  upon 
all  the  real  estate  of  defendant  in  tlie  county  wherein  it  is 
docketed,  and  is  such  lien  for  the  period  of  six  years. 

Execution  may  be  issued  at  any  time  within  six  years  after 
the  entry  of  the  judgment.  Executions  may  be  issued  to 
several  counties  at  tlie  same  time. 

The  following  articles  are  exempt  from  execution:  Wearing 
apparel  of  judgment  debtor  and  family;  also  all  chairs,  tables, 
desks  to  the  value  of  SI  00;  all  necessary  household  and 
kitchen  furniture,  including  stoves,  stovepipes  and  stove 
furniture,  beds,  bedding  and  provisions,  and  fuel  actually 
provided  for  use  sufficient  for  two  months;  and  also  one  horse, 
two  cows  with  their  calves,  two  swine  and  fifty  domestic  fowls; 
also  to  a  fai'mer,  farming  utensils  not  exceeding  in  value  six 
hundred  dollars,  also  two  oxen,  or  one  horse  or  mule,  and  their 
harness,  two  cows,  one  cart  or  wagon,  and  food  for  such  animals 
for  three  months;  also  all  seed  grain  or  vegetables  actually 
reserved  for  planting  or  sowing  at  any  time  within  six  months, 
not  exceeding  in  value  the  sum  of  two  hundred  dollars. 

To  a  mechanic  or  artisan,  tools  or  implements  necessary  to 
carry  on  his  tiade. 


,  k 


Chap.  5] 


Montana, 


271 


To  a  physician,  surgeon  or  dentist,  the  instruments  and 
chest  necessary  to  the  exercise  of  his  profession,  together  with 
his  library. 

To  an  attorne}'^  at  law,  or  a  minister  of  the  gospel,  their 
libraries. 

To  a  miner,  his  cabin,  not  to  exceed  in  value  $500;  also  his 
sluices,  pipes,  hose,  windlasses,  derrick,  cars,  pumps,  tools, 
implements  and  appliances  necessary  for  mining,  not  exceeding 
in  value  in  the  aggregate  the  sum  of  $500;  also  one  horse  or 
mule,  or  two  oxen,  and  food  for  the  same  for  three  months, 
and  their  harness,  when  necessary  to  be  used  for  any  windlass, 
derrick  or  pump. 

To  a  cartman,  truckstcr,  peddler,  teamster  or  laborer,  one 
horse  or  mule,  or  two  oxen  and  their  harness,  and  one  cart  or 
wagon,  by  the  use  of  which  such  person  habitually  earns  his 
living;  also  food  for  such  animals  for  three  months. 

Also  the  earnings  of  the  judgment  debtor  for  thirty  days 
next  preceding  the  levy  of  execution,  when  such  earnings  are 
necessary  for  the  support  of  the  debtor's  family,  residing  in 
this  State,  supported  wholly  or  in  part  by  his  la1)or. 

A  homestead  not  exceeding  in  value  $2500;  if  acfricultural 
land,  not  more  than  IGO  acres;  if  within  the  limit  of  a  town  or 
city  or  village,  not  more  than  one-fourth  of  an  acre. 

The  Sheriff  is  required  to  give  notice  of  sale  as  follows:  by 
posting  notice  of  the  time  and  place  of  such  sale  in  three  pub- 
lic places  of  the  township  or  city  where  the  sale  is  to  take 
place,  for  such  time  as  may  be  reasonable  in  case  of  perishable 
property;  in  case  of  other  personal  pi'operty,  not  less  than  five 
nor  more  than  ten  days. 

In  case  of  real  property,  by  posting  a  similar  notice  for 
twenty  days,  and  publishing  a  copy  thereof  once  a  week  for 
the  same  period,  in  some  newspaper  published  in  the  county,  if 
there  be  one.  In  all  sales  of  real  property,  where  the  estate  is 
greater  than  the  unexpired  teiui  of  a  two  years'  lease, the  same 
may  be  redeemed  within  six  months  froin  such  sale,  by — first, 
the  judgment  debtor;  second,  a  creditor  having  a  lien  by  judg- 
ment or  mortgage  on  the  property  sold,  or  some  part  thereof. 


n 


:  W 
■■Mi 


W-     r 


»;., 


272  Montana.  [Part  8 


CHAPTER   VI. 

PROCEEDINGS  SUPPLEMENTARY  TO 
EXECUTIONS. 

When  an  execution  is  returned  unsatisfied,  tlie  judf]fment 
creditor  may  compel  the  debtor  to  appear  before  a  Judge  and 
answer  concerning  his  property,  and  upon  such  liearing 
witnesses  may  be  examined.  If  any  property  is  found  tlie 
Judge  may  order  the  same  applied  on  execution. 


P  ii 


CHAPTER  Vn. 
SECURITY  FOR  COSTS— APPEALS. 

Security  for  Costs. 

Security  may  be  recjuired  in  all  cases  where  suit  is  brought 
by  a  non-resident;  and  where  such  security  is  required,  all 
proceedings  are  stayed,  and  the  action  will  be  dismissed  unless 
an  undertaking  is  filed  in  such  amoxuit  as  may  be  fixed  by  the 
Court  within  thirty  days. 

Appeals. 
Same  as  in  California. 


CHAPTER  VIII. 

ESTATES  OF  DECEASED  PERSONS. 

The  widow  or  minor  children  of  a  deceased  person  are 
entitled  to  remain  in  possession  of  the  homestoa<l,  of  all  wearing 
apparel  and  lumsehold  furniture  of  the  decedent,  and  are  also 
entitled  to  a  reasonable  provision  for  their  support. 


Chap.  8] 


Montana. 


273 


The  wife  and  minor  children  are  entitled  to  the  homestead, 
if  there  be  one,  and  to  all  personal  property  of  the  decedent 
exempt  from  execution.  If  upon  the  return  of  the  inventory- 
it  appears  that  the  value  of  the  whole  estate  does  not  excee<l 
$1500,  it  must  be  assigned  for  the  use  of  the  widow  and 
minor  children  after  the  payment  of  the  expenses  of  the  last 
illness,  funeral  charges,  and  the  expense  of  administration. 

Every  executor  or  administrator  must,  immediately  after 
his  appointment,  publish  a  notice  to  the  creditors  of  the  estate 
requiring  them  to  present  their  claims  to  him  with  proper 
vouchers.  If  the  value  of  the  estate  exceeds  ten  thousand 
dollars,  such  claims  must  be  presented  within  ten  months;  if 
under  that  sum,  within  four  months;  and  unless  they  are  so 
exhibited  within  the  time  aforesaid  they  are  barred.  Every 
claim  must  be  supported  by  the  affidavit  of  the  claimant,  or 
some  one  in  his  behalf,  setting  forth  that  the  claim  is  justly 
due,  that  no  payments  have  been  made  thereon  which  are  not 
credited,  and  that  there  are  no  oti-sets  to  the  same.  If  the 
claim  is  not  due  when  presented,  or  is  contingent,  the  particulars 
must  be  stated.  When  claims  are  thus  exhibited,  the  admin- 
istrator must,  within  ten  days,  indorse  upon  it  his  allowance 
or  rejection,  with  date  thereof.  If  he  allows  the  chiim,  it  must 
be  presented  to  the  District  Judge  for  his  approval,  who  must, 
in  the  same  manner,  indorse  upon  it  his  allowance  or  rejection. 
A  failure  by  either  of  said  officers  for  a  period  of  ten  days  to 
1  .-    e  such  indorsement  is  equivalent  to  a  rejection. 

When  a  claim  has  been  rejected  either  by  the  administrator 
or  District  Judjxe,  the  holder  must  hr'um  suit  within  three 
months  from  the  date  of  such  rejection,  if  it  be  then  due,  oi* 
within  two  months  after  it  becomes  due,  otherwise  the  claim 
is  barred. 


■: '  i: 


CHAPTER  IX. 

DEPOSITIONS  — JUDICIAL  RECORDS- 
ACKNOWLEDGMENTS. 
Depositions. 
Same  law  as  in  California,  from  which  our  code  was  taken. 


i;  r.}\ 


274 


Montana. 


[Part  H 


Judicial  Records. 

Of  another  State  or  Territory  are  proved  by  tlie  produc- 
tion of  exemplified  copies. 

Acknowledgments. 

Every  conveyance  eti'ecting  real  estate  must  be  in  writing 
and  acknowledged,  or  proved  and  certified.  The  following  is 
a  general  form  of  acknowledgment,  viz.: 

State  of  Montana,         ) 

County  of j  '^^^ 

Be  it  remembered,  that  on  this day  of ,189 — , 

before  the  undersigned,  a  (title  of  office)  within  and  for  the 
county  aforesaid,  personally  appearing,  came to  me,  per- 
sonally known  to  me  to  be  the  same  person  mentioned  in  and 
who  executed  the  foregoing  instrument,  and  he  acknowledged 
to  me  that  he  had  so  executed  the  same  freely  and  voluntarily, 
and  for  the  uses  and  purposes  therein  expressed. 

Witness  my  hand,  etc. 

If  a  married  woman  is  a  party,  the  certificate  must  state 
that  the  officer  examined  her  apart  from  and  without  the  hear- 
ing of  her  husband,  and  that  she  then  acknowledged  that  she 
executed  the  same  freely  and  voluntarily,  without  fear  of  or 
under  compulsion  of  her  said  husband,  and  that  she  did  not 
wi.«h  to  retract  the  execution  of  the  same. 


CHAPTER  X. 

LIMITED  PARTNERSHIPS. 

May  be  created  by  two  or  more  persons  who  shall  be  re- 
sponsible as  general  partners,  and  two  or  more  persons  who 
shall  contribute  to  the  common  stock  a  specific  sum  in  actual 
cash  payments. 

The  special  partners  not  to  ha  lial)le  for  any  debt  of  the 
partnership.  In  ordi'r  to  create  such  partnership,  it  is  neces- 
sary that  a  certificate,  stating  the  name  of  the  partnership 


Chap.  10] 


Montana. 


27  o 


firm,  the  place  of  residence  of  each  of  the  general  and  special 
partners,  the  amount  of  the  capital  which  each  special  partner 
has  contributed,  the  general  nature  of  the  business,  the  time 
when  the  partnership  is  to  commence  and  when  it  is  to  termin- 
ate, shall  be  made,  acknowledged  and  recorded  in  the  office  of 
the  County  Recorder  of  the  county  in  which  the  principal 
place  of  business  of  the  partnership  is  located.  Anj^  false 
statement  in  such  certificate  subjects  all  parties  to  liability  as 
general  partners. 


CHAPTER  XI. 
MARRIED  WOMEN. 

Are  liable  on  their  contracts  made  for  benefit  of  or  with 
reference  to  their  separate  property.  They  may  become  sole 
traders  by  filing  a  certificate  in  the  Comity  Recorder's  office, 
and  conduct  business  as  a  femme  .sole. 

All  the  property  owned  by  a  married  woman,  before  her 
marriage,  and  all  that  she  may  acquire  after  her  marriage,  by 
descent,  gift,  grant,  devise,  or  otherwise,  and  the  increase,  use, 
and  profits  thereof,  are  exempt  from  her  husband's  debts,  un- 
less for  necessary  articles  procured  for  herself,  and  her  children 
under  eighteen  years  of  age;  but  in  order  to  secure  such  ex- 
emption, such  property  must  be  mentioned  in  a  list  of  her 
separate  property,  which  list  must  be  of  record  in  the  office  of 
the  County  Recorder  of  the  county  in  which  she  resides. 


of  the 

necos- 

tnership 


CHAPTER  XII. 

CORPORATIONS— CHATTEL  MORTGAGES— 

INTEREST. 
Corporations. 

There  is  no  iiidividual  liabilit}'  of  stockholders  for  indebted- 
ness of  a  corporation,  beyond  the  amount  of  the  unpaid  stock 
which  they  hold. 


276 


Montana, 


[Part  8 


'■*!■ 


Chattel  Mortgages. 

All  personal  property  may  be  pledged  or  mortgaged. 
Chattel  mortgages  must  be  acknowledged  and  accompanied  by 
affidavit  of  all  parties  thereto,  or  in  case  any  party  is  absent, 
then  of  those  present,  and  the  affidavit  of  the  agent  or  attorney 
of  the  absent  party;  "that  the  same  is  made  in  good  faith  to 
secure  the  amount  named  therein,  and  without  any  desi'i-n  to 
hinder  or  delay  the  creditors  of  the  mortgagor."  Unl-  the 
property  mortgaged  is  delivered  to  the  mortgagee,  t  i  a  to 
make  the  mortgage  good  as  against  creditors,  it  must  be  filed 
in  the  office  of  the  County  Recorder  where  the  mortgagor 
resides,  or  if  he  resides  without  the  State,  then  in  the  county 
where  the  mortgaged  property  is  situated. 

Whim  foregoing  is  comp]ie<i  with,  the  mortgage  is  good 
until  maturity  of  the  debt,  and  for  60  days  thereafter,  provided 
it  shall  not  exceed  one  year  and  sixty  days. 

Such  mortgage  may  be  renewed  at  or  before  the  maturity 
of  the  debt  by  affidavit  showing  date,  names  of  mortgagor  and 
mortgagee,  date  of  filing,  amount  of  debt  secured,  amount  of 
debt  unpaid,  time  to  which  same  is  extended,  not  exceeding 
one  year,  and  that  such  debt  or  obligation  was  neither  made, 
nor  renewed  or  extended,  to  hinder,  delay  or  defraud  the 
the  creditors  or  subsequent  mortgagees  of  the  mortgagor,  which 
affidavit  shall  be  filed  with  the  mortgage. 

Such  mortgage  must  be  foreclosed  when  due. 

Interest  and  Usury. 

The  legal  rate  cf  interest  is  ten  per  cent.,  but  any  rate  for 
which  parties  may  contract  is  collectible.  There  is  no  usury 
law. 


CHAPTER  XIII. 

INSOLVENCY. 
There  is  no  insolvency  law  in  this  State. 


PART  IX. 


Arizona  Territory. 


Prepared  Expressly  for  this  Work  by  Herndon  &  Hawkins, 
Attorneys,  Prescott,  A.  T. 


CHAPTER   I. 
COURTS  AND  THEIR  JURISDICTION. 

The  followinrj  are  the  Courts  of  justice  for  the  Territory: 

1.  The  Supreme  Court.  2.  The  District  Courts.  3.  The 
Probate  Courts.     4.  The  Justices'  Courts. 

The  Supreme  Court  has  appellate  jurisdiction  in  all  cases 
wherein  the  legality  of  any  tax,  toll,  impost,  or  municipal  fine 
is  in  question.     It  also  has  jurisdiction  to  review  upon  appeal : 

First. — A  judgment  in  an  action  or  proceeding  commenced 
in  a  District  Court,  or  brought  into  that  Court  from  another 
Court,  where  the  matter  in  dispute  exceeds  two  hundred  dol- 
lars, or  when  the  possession  of,  or  title  to,  lands  or  tenaments 
is  in  controversj' ;  and  to  review  upon  the  appeal  from  such 
judgment  any  intermediate  or  collateral  order  of  the  Court  or 
Judge  at  Chambers,  involving  the  merits  and  necessarily  aftect- 
ing  the  judgment. 

Second. — An  order  granting  or  refusing  a  new  trial,  sus- 
taining or  overruling  a  demurrer,  or  affecting  a  substantial 
right  in  an  action  or  proceeding. 


fil 


1 


278 


Arizona 


[Part  9 


i'     V 


It 


'It 


f 


!■ 


m 


Tliis  Court  may  reverse,  affirm  or  modify  the  judgment  or 
order  appealed  from  as  to  any  or  all  the  parties,  and  may,  if 
necessary,  order  a  new  trial. 

When  the  judofinent  or  order  is  reversed  or  modified,  tliis 
Court  may  make  complete  restitution  of  all  property  and 
rights  lost  by  the  erroneous  judgment  or  order. 

The  District  Courts  have  jurisdiction  as  follows: 

Oriirinal  jurisdiction  in  all  civil  cases  where  tlie  amount  ex- 
ceeds  one  hundred  dollars,  exclusive  of  interest,  and  in  cases 
involving  the  title  or  possession  of  real  property. 

Appellate  jurisdiction  in  Justice-Court  actions,  and  orders 
of  judgments  of  the  Probate  Courts  in  certain  cases. 

The  Probate  Courts  have  jurisdiction  of  estates  of  deceased 
persons. 

Justices'  Courts  have  jurisdiction  as  follows: 

1.  Of  an  action  arising  on  contract  for  the  recovery  of 
money  only,  if  the  sum  claimed  does  not  exceed  three  hundred 
dollars. 

2.  Of  an  action  for  damages  for  injury  to  the  person,  or 
for  taking  or  detaining  personal  property,  or  for  injuring  real 
or  personal  property,  if  the  damages  claimed  do  not  exceed 
three  hundrcMl  dollars. 

8.  Of  an  action  upon  a  bond  conditioned  for  the  payment 
of  money  not  exceeding  three  hundred  dollars,  though  tlie  pen- 
alty exceed  that  sum,  the  judgment  to  be  given  for  the  sum 
actually  due;  when  the  payments  are  to  be  made  by  install- 
ments, an  action  may  be  brought  for  each  installment  as  it 
becomes  due. 

4.  Of  an  action  for  the  foreclosure  of  any  mortgage,  or  the 
enforcement  of  any  lien  upon  personal  property,  where  the 
debt  secured  does  not  exceed  three  hundred  dollars. 

5.  Of  an  action  to  recover  personal  property,  when  the 
value  of  such  personal  property  does  not  exceed  three  hundred 
dollars. 

6.  To  take  and  enter  judgment  on  the  confession  of  a  de- 
fendant, when  the  amount  confessed  does  not  exceed  three  hun- 
dred dollars. 


Chap.  1] 


Arizona. 


279 


Their  jurisdiction  does  not  extend  to  civil  actions  in  which 
the  tiths  to  real  property  is  brou<,dit  in  qtujstion;  or  to  an  action 
or  procee(iin<.f  against  ships,  vessels  or  l)oats,  or  against  tiie 
owners  or  masters  there.)!',  wlien  the  suit  or  proceeding  is  for 
the  recovery  of  wages  for  a  voyage  performed,  in  whole  or  in 
part,  without  the  waters  of  the  Territory. 


CHAPTER  II. 
TERMS  OF  COURTS— WHEN  AND  WHERE  HELD. 

The  Supreme  Court  is  held  at  the  seat  of  government  (now 
Ph(pnix),  coniinencing  on  the  second  Monday  in  January  of 
each  year. 

The  District  Courts  in  the  several  counties  are  held  as 
follows: 

1.  County  of  Pima,  on  the  second  Monday  in  March  and 
the  seconil  Monday  in  Septend)er. 

2.  Comity  of  Yuma,  on  the  fourth  Monday  in  March  and 
the  fourth  Monday  in  Septemlier. 

3.  County  of  Yavapai,  first  Monday  in  June  and  tirst 
Monday  in  November. 

4.  County  of  Maricopa,  on  the  first  Monday  in  May  and 
first  Monday  in  November. 

5.  County  of  Mohave,  on  the  first  Monday  in  April  and 
first  Monday  in  September. 

G.  County  of  Pinal,  on  the  tirst  Monday  in  April  and  the 
first  Monday  in  October. 

7.  County  of  Gila,  third  Monday  in  April  and  third  Mon- 
day in  October. 

8.  County  of  Cochise,  second  Monday  in  May  and  second 
Monday  in  November. 

9.  County  of  Graham,  second  Monday  in  April  and  second 
Monday  in  October. 

10.  County  of  Apache,  first  Monday  in  Jul3'. 


'5r 


.ill' 


M 
4 


1 1 


m 


AllIZONA. 


[Part  9 


District  Court  is  lield  at  tlio  county  scat  of  each  county. 

Probate  Court  is  held  at  the  county  seat  of  each  county,  on 
the  first  Monday  of  January,  Apiil,  July  and  October,  in  each 
year,  and  the  Jud;,fe  may  liold  such  adjourned  or  special  teruja 
as  he  thinks  proper. 

Justices'  Courts  are  always  open  for  the  transaction  of 
business. 


CHAPTER   III. 

COMMENCEMENT  OF  SUITS. 

Civil  actions  are  commenced  by  filing  a  complaint  with  tho 
Court  or  Justice. 

The  defendant  is  required  to  answer  the  complaint  in  Dis- 
trict Court  actions  as  follows: 

1.  If  the  defendant  is  served  within  the  county  in  which 
the  action  is  brought,  ten  days. 

2.  If  the  defendant  is  served  out  of  the  county,  but  in  the 
district  in  which  the  action  is  brought,  twenty  days. 

3.  In  all  other  cases,  thirty  days. 

4.  When  any  party  to  the  suit,  his  agent  or  attorney,  shall 
make  affidavit  at  the  time  of  instituting  the  suit,  or  at  any 
time  during  its  progress,  that  the  defendant  is  a  non-resident 
of  the  Territory,  or  that  he  is  absent  from  the  Territory,  or 
that  he  is  a  transient  person,  or  that  his  residence  is  unknown 
to  tiip  affiant,  or  is  a  corporation  incorporated  under  the  laws 
of  any  other  State  or  Territcny,  or  foreign  country,  and  doing 
business  in  this  Territory,  or  having  property  therein,  but  hav- 
ing no  legally  appointed  and  constituted  agent  in  this  Territory, 
or  that  such  defendant  conceals  himself  to  avoid  the  service 
of  summons;  the  Clerk  shall  issue  a  sunmions  directed  to  tlie 
defendant  as  in  other  cases,  and  shall  deliver  the  same  to  the 
Sheriff  of  the  county  in  which  the  suit  is  pending,  and  said 
Sheriff  shall  serve  the  same  by  making  pulJication  thereof  in 
some  newspaper  published  in  his  county,  if  there  be  one  pub- 
lished therein,  if  not,  then  in  any  newspaper  in  the  nearest 


Chap,  li] 


Arizona. 


281 


county  to  the  county  where  the  suit  is  ponding.  Such  sum- 
mons sliall  be  published  at  least  once  in  each  week  for  four 
successive  weeks. 

When  the  residence  of  the  defendant  is  known  the  same 
shall  be  stated  in  the  affidavit,  if  not  known,  that  fact  shall  be 
stated.  When  the  residence  of  defendant  is  known,  the  plain- 
tiff, his  agent  or  attorney  shall  forthwith  deposit  a  copy  of 
the  summons  and  complaint  in  the  Post-office,  postage  prepaid, 
directed  to  the  defendant  at  his  place  of  residence. 

Personal  service  of  the  summons  and  complaint  out  of  the 
Territory  shall  be  equivalent  to  publication  and  deposit  in  the 
Post-office. 

Where  personal  service  of  a  copy  of  the  sumn.ons  and  com- 
plaint is  made  out  of  the  Territory,  or  service  by  publication 
is  mail  as  above  provided,  the  defendant  is  required  to  appear 
and  answer  within  twenty  days  after  the  completion  thereof. 

In  Justice-Court  actions  the  time  mentioned  in  the  sum- 
mons for  the  appearance  of  the  defendant  and  the  time  of  ser- 
vice shall  be  as  follows: 

1.  If  tlie  defendant  is  served  in  the  precinct  in  which  the 
action  is  brought,  five  days. 

2.  If  served  without  the  precinct,  but  in  the  county,  ten 
days. 

3.  If  served  out  of  the  county,  fifteen  days. 

4.  In  all  other  cases,  twenty  days. 


1 


CHAPTER  IV. 

PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

No  person  shall  be  sued  out  of  the  county  in  which  he  re- 
sides, except  in  the  following  cases: 

1.  Where  the  defendant,  or  all  of  several  defendants,  re- 
side out  of  the  Territory,  or  their  residence  is  imknown,  the 
suit  may  be  brought  in  the  county  where  the  plaintiff  resides. 

2.  Where  the  defendant  is  a  married  woman,  she  may  be 


f 
iil 

ill 


m 


282 


Arizona. 


[Part  9 


sued  in  the  county  where  her  husband  resides,  unless  she  be 
living  separate  and  apart  from  him,  in  which  case  she  must  be 
sued  in  the  county  where  she  resides  or  may  be  found. 

3.  Where  the  defendant  is  a  transient  person,  he  may  be 
sued  in  any  county  where  he  may  be  fountl. 

4.  Where  a  person  has  contracted  in  writing  to  perform  an 
obligation  in  any  particular  county,  the  suit  may  be  brought 
either  in  such  county,  or  where  the  defendant  resides. 

5.  Where  there  are  two  or  more  defendants  residing  in 
different  counties,  tlie  suit  may  be  brought  in  any  county  where 
any  one  of  the  defendants  resides. 

6.  Where  the  suit  is  against  an  executor,  administrator  or 
guardian,  as  such  to  establish  a  money  demand  against  the  es- 
tate which  he  represents,  the  suit  must  be  brought  in  the 
county  in  which  such  estate  is  administered. 

7.  In  all  cases  of  fraud,  and  in  cases  of  defalcation  of  pub- 
lic officers,  suit  may  be  brought  in  the  county  in  which  the 
fraud  was  committed,  or  where  the  defalcation  occurred,  or 
where  the  defendant  resides  or  may  be  found. 

8.  Where  the  foundation  of  the  suit  is  some  crime,  or 
offense,  or  trespass  for  which  a  civil  suit  in  damages  may  lie, 
the  suit  may  be  brought  in  the  county  where  the  crime, 
offense  or  trespass  was  comuiitted,  or  where  the  defendant  re- 
sides or  may  be  found. 

9.  Where  the  suit  is  for  the  recovery  of  any  personal  prop- 
erty, the  suit  may  be  brought  in  the  county  in  which  the  prop- 
erty may  be,  or  in  which  the  dcfondarwb  resides  or  may  be  found. 

10.  Where  the  defendant  has  inherited  an  estate,  suits 
concerning  the  same  may  be  brought  in  the  county  where  such 
estate  principally  lies. 

11.  Where  a  suit  is  for  the  foreclosure  of  a  mortgage  or 
other  lien,  the  .suit  may  be  brought  in  the  county  in  which  the 
property  .sulyect  to  such  lien,  or  a  portion  thereof,  may  be 
situated. 

12.  Suit  for  the  partition  of  lands  or  other  property  may 
be  brought  in  the  county  where  such  lands  or  other  property. 


Cliap.  4] 


Arizona. 


283 


«%(* 


or  any  part  thei-eof,  meiy  he,  or  in  the  county  in  which  one  or 
more  of  the  defendants  reside. 

13.  Suits  for  the  recovery  of  lands  or  damages  thereto, 
suits  to  remove  incumbrances  upon  tlie  title  to  land,  and  suits 
to  quiet  the  titJe  to  land,  and  suits  to  prevent  or  stay  waste  on 
lands,  must  be  brought  in  the  county  in  which  the  land  or  a 
part  thereof  may  lie. 

14.  Suits  for  divorce  shall  be  brought  in  the  county  in 
which  the  plaintiff'  shall  have  resided  for  six  months  next  pre- 
ceding the  bringing  of  the  suit. 

15.  When  the  suit  is  brought  to  enjoin  the  execution  of  a 
judgment,  or  to  stay  proceedings  in  anj^  suit,  in  which  case  the 
suit  shall  be  brought  in  the  county  in  which  such  judgment 
was  rendered,  or  in  which  such  suit  is  pending. 

IG.  Suits  against  any  county  shall  be  commenced  in  some 
Court  of  competent  jurisdiction  within  such  county. 

17.  Suits  for  mandamus  against  any  public  officer  shall  be 
brought  in  the  county  where  such  officer  holds  his  office. 

18.  All  .suits  in  behalf  of  the  Territory  for  the  forfeiture  of 
the  charter  of  private  corporations,  chartered  by  act  of  legisla- 
ture, or  in  which  the  Territory  alone  is  interested,  nuist  be 
brought  in  theei>unty  in  which  the  seat  of  government  may  be. 

19.  Suits  against  any  private  corporation,  association  or 
joint  stock  company,  may  be  commenced  in  any  county  in 
which  the  cause  of  afHion  or  a  part  thereof  arose,  or  in  which 
sucli  corporation,  association  or  company  has  an  agent  or 
I'epresentative,  or  in  whicli  its  prhioipal  office  is  situated,  and 
suits  against  a  railroad  corporation,  or  against  any  assignee, 
trustee  or  receiver  operating  its  railway,  may  also  be  brought 
in  any  county  through  which  or  into  which  the  railroad  of 
t  uch  corporation  extends  or  is  operated. 

20.  Suits  against  fire,  marine  or  inland  insurance  companies 
ma}'^  be  commenced  in  any  county  in  which  any  part  of  the  in- 
surcti  property  was  situated,  and  suits  against  life  and  accident 
insurance  companies  or  associations,  may  be  couunenced  in  the 
county  in  which  the  p.^.son  insured  or  any  of  them  resided  at 
the  time  of  the  death  or  injury. 


'm 


\d 


If:    Jv 


! 


284 


Arizona. 


Venue  in  Justice's  Com  •-. 


[Part  9 


The  rules  governing  venue  of  civil  causes  in  the  District 
Court  shall  govern  in  Justices'  Courts,  the  word  "precinct" 
being  substituted  for  the  word  "county"  wherever  applicable; 
provided  that  suits  against  administrators,  executors,  or 
guardians  as  such,  and  suits  against  counties  must  be  brought 
in  the  precinct  in  which  the  county  seat  is  situated. 

Suits  against  transient  persons,  non-residents  of  the  Territory, 
or  persons  whope  residence  is  unknown,  may  be  brought  in  the 
precinct  where  the  plaintiff  resides. 


CHAPTER  V. 

LIMITATION  OF  ACTIONS. 

The  periods  prescribed  for  the  commencement  of  actions 
are  as  follows: 

Within  Five  Years: 

1.  Actions  for  debt  where  the  indebtedness  is  evidenced 
by  or  founded  upon  any  contrat^t  in  writing,  executed  within 
this  Territory.  • 

2.  Actions  for  the  recovery  of  real  property,  where  the 
adverse  party  claims  under  deeds  duly  registered. 

Within  Four  Years: 

1.  Actions  for  tlie  penalty  or  for  damages  on  the  penal 
clause  of  a  bond  to  convey  x-eal  estate. 

2.  Actions  by  one  partner  against  his  co-partner  for  set- 
tlement of  the  partnership  accomit,  or  upon  mutual  and  cur- 
rent accounts  (^oncerninir  the  trade  of  merchandise  between 
merchant  and  mcreliant,  their  factors  or  agents,  and  the 
cause  of  action  sliall  be  considereil  as  having  accrued  on  a 
cci^sation  of  tlie  dealings  in  which  they  were  interested  to- 
gether. 


Chap.  5] 


Arizona. 


285 


3.  Suits  on  the  bond  of  any  executor,  administrator  or 
guardian. 

4.  Actions  for  the  speciiic  performance  of  a  contract  for 
the  conveyance  of  real  estate. 

5.  Actions  to  contest  the  validity  of  a  will. 

Within  Three  Years: 

1.  Actions  for  debt  where  the  indebtedness  is  not  evidenced 
by  a  contract  in  writing. 

2.  Actions  upon  stated  or  open  accounts  other  than  such 
mutual  and  current  accounts  as  concern  the  trade  of  merchan- 
dise between  merchant  and  merchant,  their  factors  or  agents. 


■■'.'It: 


Within  Two  Years: 

1.  Actions  of  trespass  for  injury  done  to  the  estate  or  the 
property  of  another. 

2.  Actions  for  detaining  of  the  personal  property  of 
another,  and  for  converting  such  property  to  ones  own  use. 

3.  Actions  for  taking  or  carrying  away  the  goods  and 
chattels  of  another. 

4.  Actions  upon  a  judgment  or  decree  of  any  Court  rendered 
without  this  Territory,  or  upon  an  instrument  in  writing 
executed  without  this  Territory,  the  time  to  be  computed  from 
the  arrival  of  the  party  pleading  "^he  statute  in  the  Territory. 


iJI! 


Within  One  Yea 


)•: 


1.  Actions  for  injuries  done  to  the  person  of  another. 

2.  For  malicious  prosecution,  false  imprisonment,  for  in- 
juries done  to  the  character  or  reputation  of  another  by  libel 
or  slander. 

3.  For  damages   for  seduction  or  breach  of  promise  in 


marriage. 


4.  Actions  for  injuries  done  to  the  person  of  another  where 
death  ensued  from  such  injuries;  and  the  cau.se  of  action  shall 
be  considered  as  having  accrued  at  the  death  of  the  party 
injured.  • 


.J|.i 


Arizona. 


[Part  9 


pv; 


The  statute  begins  to  run  from  the  time  the  cause  of  action 
accrued. 

Part  payment  does  not  prevent  the  statute  run  ling;  but  in 
an  action  brought  to  recover  a  balance  clue  upon  a  mutual 
open  account,  where  there  have  been  reciprocal  demands  between 
the  parties,  the  cause  of  action  shall  be  deemed  to  have  accrued 
from  the  time  of  the  cessation  of  the  dealings  in  which  they 
were  interested  together. 

Every  action  upon  a  judgment  or  decree  rendered  in  any 
other  State  or  Territory  of  the  United  States,  in  the  District 
of  Columbia,  or  in  any  foreign  country,  shall  be  barred  if  by 
the  laws  of  such  State  or  country  such  action  would  there  be 
barred,  and  the  judgment  or  decree  be  incapable  of  being 
otherwise  enforced  there. 

If,  when  the  cause  of  action  accrues  against  a  person,  he  is 
out  of  the  Toi'ritory,  the  action  may  be  commenced  within  the 
term  herein  limited,  after  his  return  to  the  Territory;  and  if 
after  the  cause  of  action  accrues  he  departs  from  the  Territory, 
the  time  of  his  absence  shall  not  be  part  of  the  time  limited 
for  the  couuuencement  of  the  action. 


CHAPTER  VI. 


ATTACHMENTS. 


The  Judges  and  Clerks  of  the  District  Courts  and  Justices 
of  the  Peace  may  issue  writs  of  original  attachment,  returnable 
to  their  respective  Courts,  upon  tlie  plaintiti*  his  agent  or 
attorney,  making  an  affidavit  in  writing,  stating  one  or  more 
of  the  following  grounds: 

1.  That  the  defendant  is  justly  indebted  to  the  plaintitt" 
and  the  amount  of  the  demand;  and, 

2.  That  the  defendant  is  not  a  resident  of  the  Territory, 
or  is  a  foreign  corporation,  or  is  acting  as  such;  or, 


Chap.  6] 


Arizona. 


287 


3.  That  he  is  about  to  remove  permanently  out  of  the 
Territory,  and  has  refused  to  pay  or  secure  the  debt  due  the 
plaintiff;  or, 

4.  That  he  secretes  himself,  so  that  the  ordinary  process 
of  law  cannot  be  served  on  him ;  or, 

5.  That  he  has  secreted  his  property  for  the  purpose  of 
defrauding  his  creditors;  or, 

G.  That  he  is  about  to  secrete  his  property  for  the  purpose 
of  defrauding  his  creditors;  or, 

7.  That  he  is  about  to  remove  his  propertj'  out  of  the 
Territory,  without  leaving  sufficient  reinainiiig  for  the  payment 
of  his  debts ;  or, 

8.  That  he  is  about  to  remove  his  propert}-,  or  a  part 
thereof,  out  of  the  county  where  the  suit  is  brought,  with 
intent  to  defraud  his  creditors-  or, 

9.  That  he  has  disposed  of  his  property,  in  whole  or  in 
a  part,  with  intent  to  defi-aud  his  creditors;  or, 

10.  That  he  is  about  to  dispose  of  his  property  with  intent 
to  defraud  his  creditors;  or, 

11.  That  he  is  about  to  convert  his  property,  or  a  part 
thereof,  into  money,  for  the  pui-pose  of  placing  it  beyond  the 
reach  of  his  creditors;  or, 

12.  That  the  debt  is  due  for  property  obtained  under  false 
pretenses. 

The  affidavit  shall  further  state: 

1.  That  the  attachment  is  not  sued  out  for  the  purpose  of 
iniurmfj:  or  harnssins:  the  defendant;  and, 

2.  That  the  plaintifi'  will  probably  lose  his  debt  unless  such 
attachment  is  issued. 

No  such  attachment  shall  issue  until  the  suit  has  been  duly 
in.stituted,  but  it  may  be  issued  in  a  proper  case  either  at  the 
conmiencement  of  the  suit  or  at  any  time  during  its  progress. 

The  writ  of  attachment  above  provided  for  .shall  issue, 
although  th(>  plaintiff's  di'bt  or  demand  be  not  due,  ami  the 
same  proceeding  shall  be  had  thereon  as  in  otiier  cases,  except 
that  no  final  judgment  shall  be  rendered  against  the  defendant 
until  such  debt  or  demand  shall  become  due. 


m 

m 
m 


4 


288 


Arizona. 


[Part  9 


\i\ 


Before  the  issuance  of  any  writ  of  attachment  the  plaintiff 
must  execute  a  bond,  with  two  or  more  good  and  sufBcient 
sureties,  payable  to  the  defendant,  in  a  sum  not  less  tlan  double 
the  debt  sworn  to  be  due,  conditioned  that  the  plaintiff"  will 
prosecute  his  suit  to  effect,  and  will  pay  all  such  damages  and 
costs  as  shall  be  adjudged  against  him,  for  wrongfully  suing 
out  such  attachment. 


Ir  i! 


CHAPTER  VIT. 

GARNISHMENT. 

The  Clerks  of  the  District  Courts  and  Justices  of  the  Peace 
may  issue  wx'its  of  gai'nishment,  returnable  to  their  respective 
courts,  in  the  following  cases : 

1.  Where  an  original  attachment  has  been  issued  as  herein- 
before provided. 

2.  Where  the  plaintiff"  sues  for  a  debt,  and  makes  affidavit 
that  such  debt  is  just,  due  and  unpaid,  and  that  the  defendant 
has  not,  within  his  knowledge,  property  in  his  possession,  with- 
in this  Territory,  subject  to  execution,  sufficient  to  satisfy  such 
debt,  and  that  the  garnishment  applied  for  is  not  sued  out  to 
injure  either  the  defendant  or  the  garnishee. 

3.  Where  the  plaintiff  has  a  judgment  and  makes  affidavit 
that  the  defendant  has  not,  within  his  knowledge,  property  in 
his  possession  within  this  Territoiy,  subject  to  execution,  suffi- 
cient to  satisfy  such  judgment. 

In  the  case  mentioned  in  subdivision  two  of  the  preceding 
section,  the  plaintiff"  shall  execute  a  bond,  with  two  or  more 
good  and  sufficient  sureties,  to  be  approved  by  the  officer  issuing 
the  writ,  payable  the  defendant  in  the  suit,  in  double  the 
amount  of  the  debt  claimed  therein,  conditioned  that  he  will 
prosecute  this  suit  to  eff'ect  and  pay  all  damages  and  costs  that 
may  be  adjudged  against  him  for  wrongfully  suing  out  such 
garnishment. 

Before  the  issuance  of  the  writ  of  garnishment  the  plaintiff" 
shall  make  application  therefor  in  writing,  under  oath,  signed 


Chap.  7] 


Arizona. 


289 


by  him,  stating  the  facts  authorizing  the  issuance  of  the  writ, 
and  that  the  plaintiti"  has  reason  to  believe  that  the  garnishee, 
stating  his  name  and  residence,  is  indebted  to  the  defendant; 
or  that  he  has  in  his  hands  etiects  belonging  to  the  defendant; 
or  that  the  garnishee  is  an  incorporated  or  joint  stock  company, 
and  that  the  defendant  is  the  owner  of  shares  in  such  company, 
or  has  an  interest  therein. 

The  time  in  which   the  writ  shall  be  returned  is  the  same 
as  summons  in  civil  cases. 


CHAPTER  VIII. 

JUDGMENT  LIENS. 

The  Clerk  of  a  Court  or  a  Justice  of  the  Peace,  when  the 
person  in  whose  favor  the  judgment  was  rendered,  his  agent, 
attorney,  or  assignee,  applies  therefor,  shall  make  out  and  de- 
liver to  such  applicant,  upon  the  payment  of  the  fee  allowed 
therefor  by  law,  an  abstract  of  such  judgment,  and  certify 
thereto  under  his  hand  and  official  seal,  or  if  a  Justice,  under 
his  hand. 

The  abstract  shall  show: 

1.  The  names  of  the  plaintift'and  defendant  in  such  judg- 
ment. 

2.  The  number  of  the  suit  in  which  the  judgment  was 
rendered. 

3.  The  date  when  such  judgment  was  rendered. 

4.  The  amount  for  which  the  same  was  rendered,  and  the 
amount  still  due  upon  the  same. 

5.  The  rate  of  interest,  if  any,  is  specified  in  the  judgment, 
v^hen  any  such  abstract  is  presented  to  the  County  Recorder 

for  record,  he  shall  file  and  immediately  record  the  same  in  the 
judgment  record,  and  shall  also  at  the  same  time  enter  it  upon 
the  index. 

When  any  judgment  has  been  recorded  and  indexed,  it 
shall,  from  the  date  of  such  record  and  index,  operate  us  a  lien 


I 


!.:X  '- 


It 


:v(|i 


—4-,;  I 
I  ill 


f'l 


290 


Arizona. 


[Part  9 


upon  all  of  the  real  estate  of  the  defendant  situated  in  the 
county  where  such  record  and  index  are  made,  and  upon  all 
the  real  estate  which  the  defendant  may  thereafter  acquire 
situated  in  said  county. 

When  a  lien  has  been  accjuired  as  provided  in  this  Act,  it 
shall  continue  for  five  years  from  the  date  of  such  record  and 
index  unless  the  plaintiff  shall  fail  to  have  execution  issued 
upon  his  judgment  within  twelve  months  after  the  rendition 
thereof,  in  which  case  said  lien  shall  cease  to  exist. 


ill 


1 


CHAPTER  IX.. 

EXECUTIONS,   EXEMPTIONS,   SALE  AND 
REDEMPTION. 

Execution  may  be  issued  at  any  time  within  five  years 
after  the  entry  of  judgment. 

The  following  property  is  exempt  from  execution: 

1.  The  homestead,  consisting  of  a  quantity  of  land,  to- 
gether with  the  dwelling-house  thereon,  and  its  appurtenances, 
and  the  water  rights  and  privileges  peitaining  thereto,  suffi- 
cient to  irrigate  the  lands,  not  exceeding  in  value  the  .sum  of 
four  tliousand  dollars,  allowed  to  the  head  of  the  family.  The 
homestead  may  be  selected  by  the  debtor,  or  by  appraisers  duly 
appointed  for  that  purpose. 

2.  $1000  worth  of  personal  property,  to  be  selected  by 
himself. 

If  the  officer  holding  execution  and  defendant  disagree  as 
to  value  of  property  selected,  each  shall  select  an  appraiser, 
who  shall  appraise  the  property,  and  if  they  disagree  they 
may  select  a  third  party,  and  the  decision  of  the  three  as  to  the 
value  shall  be  final. 

If  the  defendant  fail  to  select  a  person  to  act  as  an  appraiser, 
the  officer  shall  summon  three  disinterested  property  holders, 
neighbors  of  defendant,  who  shall  designate  an<l  set  apart  for 
defendant  said  personal  property. 


Chap.  9] 


Arizona. 


SM 


An  execution  may  be  made  returnable  in  not  less  than  ten 
nor  more  than  ninety  days  after  its  receipt  by  the  Sheritf'. 
Notice  of  sale  must  be  given  as  follows: 

1.  In  case  of  perishable  property,  a  reasonable  time. 

2.  In  case  of  personal  pioperty,  not  less  than  ten  days, 

3.  In  case  of  real  property,  three  weeks. 

Upon  the  sale  of  real  property,  when  the  estate  is  less  than 
a  freehold  of  two  years  unexpired  term,  the  sale  shall  be 
absolute.  In  all  other  cases,  the  real  property  is  subject  to 
redemption  within  six  months  after  the  sale,  upon  paying  to 
the  purchaser  the  amount  of  the  purchase,  with  nine  per  cent, 
in  addition,  and  all  taxes  or  as.sessments  paid  by  the  purchaser. 


CHAPTER   X. 

PROCEEDINGS  SUPPLEMENTARY  TO 
EXECUTION. 

When  an  execution  is  returned  unsatisfied  in  whole  or  in 
part,  the  judgment  creditor,  at  any  time  after  such  i-eturn  is 
made,  is  entitled  to  an  order  from  the  Judge  of  the  Court,  re- 
(piiring  such  judgment  debtor  to  appear  and  answer  concerning 
his  property  before  such  Judge  or  a  referee  appointed. 


CHAPTER   XI. 

ESTATES  OP  DECEASED  PERSONS. 

Tmnu'(liat('ly  after  the  appointment  of  the  executor  or 
administrator,  he  shall  give  notice  through  a  newspaper  pub- 
lished in  the  country,  if  there  be  one,  and  if  not,  then  in  such 
newspaper  designated  by  the  Court,  requiring  all  persons  hav- 
ing c'lniiiis  against  the  deceased  to  pi'esent  them,  with  the 
necessary  vouchers,  within  ten  months  after  publication  of  the 


292 


Arizona. 


[Part  9 


notice,  when  the  estate  exceeds  in  vahie  S'3000,  and  four  months 
when  it  does  not.  If  a  claim  be  not  presented  within  tiie  time 
above  stated,  it  shall  be  forever  barred;  however,  if  it  be  not 
then  due  or  is  contingent,  it  may  be  presented  within  one  month 
after  it  shall  become  due  or  absolute;  and  when  it  shall  be  made 
to  appear  by  the  affidavit  of  the  claimant,  to  the  satisfaction 
of  the  executor  or  administrator,  and  the  Probate  Judge,  that 
the  claimant  had  no  notice  by  reason  of  being  out  of  the 
Territory,  it  may  be  presented  at  any  time  b  fore  a  decree  of 
distribution  is  entered.  Every  claiTu  presented  to  the  executor 
or  administrator  shall  be  supported  by  the  affidavit  of  the 
claimant,  that  the  amount  is  justly  due,  that  no  payments 
have  been  made  thereon,  and  that  there  are  no  oti'-sets  to  the 
same  to  the  knowledge  of  the  claimant  or  other  affiant;  provided, 
that  when  the  affidavit  is  made  by  any  other  person  than  the 
claiuiaut,  he  shall  set  forth  in  the  affidavit  the  reason  it  is  not 
made  by  the  claimant. 

The  affidavit  may  be  sworn  to  before  any  officer  authori'^ced 
to  take  oaths. 

When  a  claim  is  presented  and  allowed  by  the  execut<ii- 
or  administrator,  it  shall  then  be  presented  to  the  Probate 
Judge  for  his  approval,  and  within  thirty  days  thereafter 
tiled  with  the  Probate  Court. 

If  a  claim  be  founded  upon  a  bond,  note,  or  other  instru- 
ment, the  original  instrument  shall  be  presented.  If  the  clo'.m 
be  secured  by  a  mortgage  or  other  lien,  such  mortgage  or  other 
evidence  of  liens  shall  be  attached  to  the  claim,  and  liled  there- 
with, unless  the  same  be  recorded  in  the  office  of  the  Recorder 
of  the  county  in  which  the  land  lies,  in  which  case  it  shall  be 
sufficient  to  describe  the  mortgage  or  lien,  and  refer  to  the  date, 
volume  and  page  of  its  record.  In  all  cases  the  claimant  may 
withdraw  his  claim  from  file  on  leaving  a  certified  copy,  with  a 
receipt  endoi'sed  thereon  by  himself  or  agent. 

After  a  claim  is  rejected,  suit  must  be  brought  thereon 
within  three  months,  or  it  is  forever  barred ;  if  it  be  not  then 
due,  suit  must  be  brought  within  three  months  from  the  time 
it  falls  due.     An  outlawed  claim  must  not  be  allowed. 


Cliap.  11] 


Arizona. 


21)3 


rixed 


instru- 
clo'.in 
other 
there- 
Kortk'i' 
I  all  be 
e  date, 

lit  may 
with  a 


When  n  judgment  has  been  rendered  against  the  testator  or 
intestate  in  his  life-time,  no  execution  shall  issue  thereon  after 
his  death;  but  a  certified  copy  of  such  judgment  shall  be  pre- 
sented to  the  executor  or  administrator,  and  be  allowed,  and 
filed  and  rejected  as  any  other  claim,  but  need  not  be  supp(jrted 
by  the  atiidavit  of  the  claimant;  and  if  justly  duo  and  unsatis- 
fied, ."-hall  be  paid  in  due  course  of  administration;  provided, 
however,  that  if  the  execution  shall  have  been  actually  levied 
upon  any  property  of  the  decease*  1.  the  same  may  be  sold  for 
the  satisfaction  thereof,  and  the  ofHeer  making  the  sale  shall 
account  to  the  executor  or  adnnnistrator  for  an}'  surplus  in  his 
hands.  The  executor  or  administrator  may,  however,  require 
the  affidavit  of  the  claimant,  or  other  satisfactory  proof,  that 
the  judgment,  or  any  portion  there(jf,  is  justly  due  and  un- 
•satisfied. 


CHAPTER  XII. 
AFFIDAVITS  AND  DEPOSITIONS. 

An  affidavit  taken  in  another  State  or  Territory,  to  be  used 
in  tliis  Territory,  shall  be  taken  before  a  Conmiissioner  appointed 
by  the  Governor  of  this  Territory  to  take  affidavits  and  de- 
positions in  such  State  or  Territory,  or  Notary  Public,  or  Clerk 
of  a  Court  having  a  seal. 

The  deposition  of  a  witness  out  of  the  Territory  may  be 
taken  in  an  action  at  any  time  after  the  service  of  the  summons 
or  the  appearance  of  the  defendant. 

Depositions  of  witnesses  may  be  taken  in  the  following 
cases : 

1.  When  the  witness  is  a  female. 

2.  When  by  reason  of  age,  infirmity,  sickness,  or  official 
duty,  it  is  probable  that  the  witness  will  be  unable  to  attend 
Court. 

H.  When  the  witness  resides  without  the  Territory  or 
county  in  which  the  suit  is  pending,  or  more  than  fifty  miles 
from  the  place  of  trial. 


'in 


'•fH 


2!)4 


Arizona. 


[Part  9 


4.  When  the  witness  has  left  or  is  about  to  leave  the  Ter- 
ritory or  the  county  in  which  the  suit  is  pending,  and  will  not 
prohably  be  present  at  the  trial. 

').  Whenever  the  party  desires  to  perpetuate  the  testi- 
mony of  a  witness. 

Either  party  wishin;^'  to  take  the  deposition  of  a  witness 
in  a  suit  pendinj,'  in  Court,  shall  tile  with  the  Cleik  or  Justice 
of  the  Peace,  as  the  case  nia}'  be,  a  notice  of  his  intention  to 
apply  for  a  commission  to  take  the  answers  of  the  witness  to 
interr()o;atories  attached  to  such  notice.  The  notice  shall  state 
the  name  anil  residence  of  the  witness,  or  the  plact;  where  ho 
is  to  be  found,  and  the  suit  in  which  the  deposition  is  to  bo 
used,  and  a  copy  thereof,  and  of  the  attached  interrogatories, 
.shall  be  served  upon  the  adverse  party  oi-  his  attorney  of 
record  five  days  before  the  issuance  of  a  connnission. 

Whenever  one  party  may  file  interrogatories,  for  the  pur- 
pose of  taking  the  deposition  of  a  witness,  the  opposite  parties 
may  file  cross-interrogatories  at  any  time  before  the  commis- 
sion issues,  and  a  copy  of  the  same  shall  accompany  the  direct 
interrogatories,  and  shall  be  answered  and  returned  forthwith. 

The  commission  .shall  be  addres,sed  to  the  following  officers, 
either  of  whom  may  execute  and  return  the  same : 

1.  If  the  witness  be  alleged  to  reside  or  be  within  the 
Territory:  to  any  Clerk  of  the  BisLriet  Court,  or  any  Notary 
Public  of  the  proper  county. 

2.  If  the  witness  be  alleg' d  lo  reside  or  be  without  the 
Territory,  and  within  the  United  States:  to  any  Clerk  of  a 
Court  of  Record  having  a  seal,  any  Notary  Public,  or  a'  com- 
missioner of  deeds  duly  appointed  under  the  laws  of  this  Ter- 
ritory, with  some  other  State  or  Territory. 

8.  If  the  witness  be  alleged  to  reside  or  be  without  the 
United  States:  to  any  Notary  Public,  or  any  Minister,  (^ommis- 
.sioner,  or  Charge  d' Affaires  of  the  United  States  resident  in  and 
accredited  to  the  country  where  the  <leposition  may  be  taken, 
or  any  Consul-General,  Consul,  Vice-Con.sul,  Commercial  Agent, 
Vice-Commercial  Agent,  Deputy  Consul  or  Consular  Agent  of 
the  United  States  resident  in  such  country. 


Chap.   12] 


Arizona. 


295 


Depositions  may  bo  returned  to  the  Court  either  by  mail, 
by  a  party  intcrcstcMl  ij\  taking-  the  suiiic,  or  by  any  other  per- 
son. If  sent  by  mail,  the  ])ostniaster  or  his  deputy  mailing 
the  saiiK!  shall  indorse  thereon  that  he  received  them  liom  the 
hands  of  the  ofHeer  before  whom  thuy  were  taken;  and  the 
Clerk  or  Justice  takinif  them  from  the  Post-oflfice  shall  indor.so 
on  them  that  he  received  them  fiom  tht;  Post-otlice,  and  .sign 
his  name  thereto.  If  .sent  otherwise  than  by  mail,  the  person 
deliverint'  them  into  the  Court  shall  make  affidavit  befont  the 
Clerk  or  Justice  that  he  received  them  from  the  hands  of  the 
oHicer  before  vvhoi:;  they  were  taken;  and  that  they  have  not 
been  out  of  his  pos.se.ssion  since,  and  that  thej'  have  tnidernone 
no  alteration. 


:'■  i' 


m 


CHAPTER  XIII. 

ACKNOWLEDGMENTS . 


The  proof  or  ackncnvledgmcnt  of  every  conveyance  affect- 
ing any  real  estate  shall  be  taken  by  some  one  of  the  following 
officers- 

1.  If  acknowledged  or  proved  within  this  Territor}-:  by 
some  Clerk  of  a  Court  having  a  .seal,  or  some  Notary  Public  or 
Justice  of  the  Peace  of  the  proper  county,  or  County  Recorder, 

2.  If  acknowledged  or  ])roved  without  this  Territory  and 
within  the  United  States:  by  some  Clerk  of  any  Court  of  the 
United  States,  or  of  any  State  or  Territory  having  a  .seal,  or 
by  any  Connnissioner  appointed  b}'  the  Governor  of  this  Terri- 
tory for  that  purpose,  or  by  a  Notary  Public. 

3.  If  acknowledged  or  proved  without  the  United  States: 
by  any  Notary  Public,  or  by  any  Minister,  Commis.sioner,  or 
Charge  d'Att'airs,  Consul-General,  Vice-Consul,  Commercial 
Agent,  Vice-Commercial  Agent,  Deputy  Consul,  or  Con.sular 
Agent,  or  Consul  of  the  United  States  appointed  to  reside  in 
such  foreign  country. 


i 


..:,J1 


::hi 


296 


Arizona. 


[Part  9 


Every  officer  who  shall  take  the  proof  or  acknowledgment 
of  any  conveyance  afiecting  an}'  real  estate  shall  grant  a 
certificate  thereoi,  and  cause  such  certificate  to  be  indorsed  or 
annexed  to  such  conveyance.     Such  certificate  shall  be: 

When  granted  by  an  officer  who  has  a  seal  of  ortice,  under 
the  hand  and  ofi'cial  seal  of  such  officer. 

The  certificate  of  such  acknowledgment  shall  state  the  fact 
of  acknowledgment,  and  that  the  person  making  the  same  was 
personally  known  to  the  officer  granting  the  certificate  to  be 
the  person  whose  name  is  subscribed  to  the  conveyance  as  a 
party  thereto,  or  was  proved  to  be  siich  by  the  oath  or  affirm- 
ation of  a  credible  witness,  whose  name  shall  be  inserted  in  the 
certificate,  and  that  such  person  acknowledged  the  same  for 
the  purpose  and  considei-ation  therein  expressed. 

A  i!<arried  woman  may  convey  her  real  estate  witiiout  her 
husband  joining  in  the  conveyance.  No  acknowledgment  to 
be  made  by  a  married  woman  to  the  homestead,  unless  she  be 
personally  known  to  the  officer  taking  the  same  to  be  the 
person  whose  name  is  subscribed  to  such  conveyance  as  a  party 
thereto,  or  shall  be  proved  to  be  such  by  a  credible  witness; 
nor  unless  such  married  woman  shall  be  made  acquainted  with 
the  cont"nts  of  such  conveyance,  and  shall  acknowledge  on  an 
examination,  ai)art  from  and  without  the  hearing  of  her 
husband,  that  she  executed  the  same  freely  and  voluntarily, 
without  fear  or  coinplusion,  or  undue  influence  of  her  husband, 
and  that  she  does  not  wish  to  retract  the  execution  of  the  same. 


Ni 


CHAPTER    XTV. 

MARRIED  WOMEN. 

All  propert}-,  both  real  and  personal,  of  the  wife,  owned  f)y 
hei  before  nuirriage,  and  that  accpiired  afteiward  by  gift, 
be(|uest,  devise  or  descent,  shall  be  her  separate  property,  nml 
is  not  subject  to  the  debts  of  lier  husband. 


Chap.  14] 


Akizona. 


297 


All  property  acciuired  after  marriage,  by  either  husband  or 
wife,  except  such  as  m'-.j  be  acquired  by  gift,  bequest,  devise  or 
descent,  shall  be  common  property. 

The  separate  property  of  the  husband  is  not  liable  for  the 
debts  of  the  wife  contracted  before  marriage,  but  the  separate 
property  of  the  wife  shall  be  and  continue  liable  for  all  .such 
debts. 


CHAPTER    XV. 
CHATTEL  MORTGAGES. 

Chattel  mortgages  may  be  made  on  the  following  property, 
viz. : 

All  kinds  of  personal  property. 

No  chattel  mortgage  made  sliall  have  any  legal  force  or 
ctt'ect,  (except  between  the  parties  thereto)  unless  the  residence 
of  the  mortgagor  and  mortgagee,  their  profession,  trade  or  occu- 
pation, the  sum  to  be  secured,  the  rate  of  interest  to  be  paid, 
when  and  where  payable,  shall  be  set  out  in  the  mortgage;  and 
the  mortgagor  and  mortgagee  shall  make  affidavit  that  the 
mortgage  is  bona  Jide,  and  without  any  design  to  defraud  or 
delay  creditors,  M-hii-li  affidavit  shall  be  attached  to  such 
mortgage. 

Mortgage  not  valid  as  to  third  parties  unless  duly  filed  in 
the  office  of  the  County  Recorder,  »luly  registered  and  ab- 
stracted, or  unless  the  mortgagee  receives  and  retains  the  act- 
ual possession  of  the  property. 


CHAPTER  XVI. 

INTEREST. 

When  there  is  no  express  agreement  fixing  a  different  rate 
of  interest,  interest  shall  be  allowed  at  the  rate  of  seven  per 


WTff!!^ 


ii 

0 


S98 


AUIZONA. 


[Part  9 


cent,  per  annum  on  all  moneys  after  they  become  due  on  any 
boml,  bill,  promissory  note,  or  other  instrument  of  writinrj,  or 
any  judf^ment  recovered  before  any  Court  in  this  Territory  for 
money  lent,  for  money  due  on  the  settlement  of  accounts  from 
the  day  on  which  t)  e  balance  is  ascertained,  and  for  money  re- 
ceived for  the  use  of  another. 

Parties  may  agree,  in  writing,  for  the  payment  of  any  rate 
of  interest  whatever  on  money  due  or  to  become  due  on  any 
contract;  any  judgm.ent  rendered  on  sucli  rontract  shall  con- 
form thereto,  and  sliall  bear  the  interest  agreed  upon  by  the 
parties,  and  which  shall  be  specified  in  the  judgment. 

Parties  may  agree  in  w^riting  to  compound  interest. 


CHAPTER  XVII. 
BELLS  OF  EXCHANGE. 

Three  days'  grace  allowed  on  notes  and  bills  except  sight 
drafts. 

The  holder  of  any  bill  of  exchange  or  promissory  note,  as- 
signable or  negotiable  by  the  law  merchant,  may  also  secure 
and  fix  the  liability  of  any  drawer  or  indorser  of  su^'h  bill  of 
exchange  or  promissory  note,  for  the  payment  thereof,  without 
suit  against  the  acceptor,  drawer  or  maker,  l)y  procui-ing  such 
bill  or  note  to  be  regularly  protested  by  a  Notary  l^ublic  for 
non-acceptance  or  non-payment,  and  giving  notice  of  such  ])r()- 
test  to  such  drawer  or  indorser,  according  to  the  usages  ami 
customs  of  merchants. 

It  sliall  be  the  duty  of  any  Notary  Public  who  sliall  pro- 
test any  bill  of  exchange  or  promissory  note  for  non-accept- 
ance or  non-payment,  to  set  forth  in  his  proti-st  and  in  his 
notarial  record  a  full  antl  true  statmt;nt  of  what  shoU  have 
been  done  by  him  in  relation  thereto,  according  to  flie  tacts,  by 
specifying  therein  whether  denmnd  was  made  o*^  the  ^ui;.  a..' 


Chap.  17] 


Arizona. 


299 


money  in  such  bill  or  note  specified,  of  whom,  and  when  and 
where  such  demand  was  made.  It  shall  also  be  his  duty  to 
make  the  requisite  notices  of  protest  for  the  drawers  and  in- 
dorsers  who  are  sought  to  be  made  liable,  and  when  any  such 
notice  shall  be  served  by  him,  he  shall  note  in  his  protest  and 
notarial  record  on  whom  and  when  s  ich  notice  was  served ; 
and  when  such  notice  shall  be  deposited  in  the  Post-office  by 
him  he  shall  specify  wlien  and  where  mailed,  and  to  whom  and 
where  directed,  and  such  pi'otcst,  or  a  copy  of  such  notarial 
recoril,  certified  undei'  the  hand  and  seal  of  such  Notary  Pub- 
lic, shall  bo  admitted  in  all  the  Courts  of  this  Territory  as  evi- 
dence of  the  facts  therein  set  forth. 

The  holder  of  any  protested  draft  or  bill  of  exchange, 
drawn  by  any  merchant  within  the  limits  of  this  Territory, 
upon  his  agent  or  factor  living  beyond  the  limits  of  this  Terri- 
tory, shall,  after  having  fixed  the  liabilities  of  the  (1;awer  or 
indorser  of  any  such  draft  or  bill  of  exchange,  be  entitled  to 
recover  and  receive  ten  per  cent,  on  the  amount  of  such  draft 
or  bill  as  damages,  together  with  interests  and  costs  of  suit 
thereon  accruing. 

No  person  in  this  Territory  shall  bo  charged  as  an  acceptor 
en  a  bill  of  exchange  unless  liis  ace;^ptance  shall  be  in  writing 
K.fa.'d  by  liimself  or  his  lawful  agent. 

Svcry  holder  of  a  bill  presenting  the  same  for  acceptance, 
1:  u'  equire  ^hat  the  acceptance  be  written  on  the  bill;  a  re- 
fusal to  comply  with  such  request  shall  l)e  deemed  a  refusal  to 
accept,  and  the  bill  may  be  protested  for  non-acceptance. 


CHAPTER  XVIII. 
INSOLVENCY. 
There  is  no  insolvency  law  in  this  Territory. 


■ill 


300 


Arizona. 


[Part  9 


CHAPTER  XIX. 
ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS. 


'   ]' 


cL'i' 


A  general  assignment  by  insolvent  debtor  must  be  recorded, 
have  annexed  ar  i  iventory,  under  oath,  of  all  creditors,  their 
residence,  sum  anv  leration  due  each,  how  evidenced,  with 

statement  of  debtor.-.  'ire  estate,  giving  values.  Insolvent 
may  make  assignments  for  benefit  of  such  creditors  only  as 
will  accept  their  'p^'O  rata  in  discharge  of  all  liability.  Any 
creditor  having  reason  to  believe  that  such  debtor  has  con- 
cealed his  property  may  have  him  summoned  before  District 
or  County  Judge,  and  examined  under  oath,  etc.  Any  at- 
tempted preference  of  one  or  more  creditors  shall  be  deemed 
fraudulent  and  without  effect.  Concealment  by  debtor  of  his 
property  from  assignee,  or  transfer  of  property  previous  to  and 
in  contemplation  of  assignment,  with  intent  to  defraud  his 
creditors,  is  made  a  felony. 


*h 


PART  X. 


Utah  Territory. 


Prepared  Expressly  for  this  Work  by  Marshall  &  Royle, 

Salt  Lake  City. 


CHAPTER  I. 
COURTS  AND  THEIR  JURISDICTION. 

The  Supreme  Court  of  the  Territory  has  general  appellate 
jurisdiction  only. 

There  are  tliree  United  States  District  Courts  in  the  Terri- 
tory, with  unlimited  jurisdiction  in  all  chancery  and  law  actions. 

The  Probate  Courts. 

One  in  each  county.  Their  jurisdiction  is  limited  to  strictly 
probate  business,  except  that  they  may  try  divorce  cases  where 
both  parties  agree  upon  that  forum:  removable,  however,  at 
the  pleasure  of  either  party,  to  the  District  Court.  The  Judges 
have  the  right  to  enter  town  sites,  and  preside  over  the  Board 
of  Selectmen;  in  other  words,  the  County  Court. 

Justices'  Courts. 

Have  jurisdiction  in  all  cases  where  the  amount  involved  is 
less  than  three  hundred  dollars,  except  in  cases  involving  titles 
to  real  estate. 


fW^r~ 


ao2 


Utah. 


[Part  10 


CHAPTER  II. 

THE  TERMS  OF  COURTS,   AND  PLACES  OF 
HOLDING  SAME. 

The  Supreme  Court  sits  the  iirst  Monday  of  January  anil 
the  second  Monday  of  June  of  each  year,  at  Salt  Lake  City. 

The  District  Courts  sit  as  follows:  1st  District,  comprising 
the  Counties  of  Millard,  Sevier,  San  Pete,  Juab,  Utah,  Wasatch 
and  Morgan,  Weber,  Box  Elder,  Cache  and  Rich  Counties,  and 
is  held  at  Provo,  Utah  County,  and  at  Ogden,  Weber  County, 

Second  District,  comprising  the  Counties  of  Kane,  Wash- 
ington, Piute,  Iron  and  Beaver,  is  held  at  Beaver  City,  Beaver 
County  on  first  Mondays  in  March,  May,  September  and 
December. 

Third  District,  comprising  the  Counties  of  Salt  Lake,  Tooele, 
Summit  and  Davis,  is  held  in  the  City  and  County  of  Salt 
Lake,  on  the  second  Monda}"^  in  April,  fourth  Thursday  in  Sep- 
tember, second  Monday  in  November,  and  first  Monday  in 
February. 

The  Probate  Coui-ts  and  Justices'  Courts  are  always  open 
for  the  transaction  of  business;  the  former  at  their  respective 
County  Court  Houses,  and  the  latter  in  their  respective  precincts. 


":|--, 


lit 
lift 


1 

1 

f 

[ 

4 

, 

i( 

1  [ 

i 

u 

CHAPTER  III. 

COMMENCEMENT  OP  SUITS  AND  TIME 
ALLOWED  DEFENDANTS  TO  PLEAD. 

Suits  may  be  commenced  at  any  time.  Ten  days  after  ser- 
vice of  sunnnons  are  allowed  the  defendants  to  plead,  answer, 
demur,  or  file  motions  in  cases  in  the  District  Courts  if  served 
in  the  county;  if  out  of  the  county,  but  within  the  district, 
twenty  days;  if  elsewhere,  forty  days. 

In  Justices'  Courts  defendants  may  Vie  re([uired  to  answer 
within  two  days  after  service,  and  m)t  longer  than  ten  days 
after  service. 


Clmp.  4] 


Utah. 


303 


scr- 
swor, 
■rvcd 
,trict, 


aiiyp 


CHAPTER  IV. 
LIMITATION  OF  ACTIONS. 

Actions  for  the  recovery  of  real  estate  can  only  be  brouo;ht 
within  seven  years  after  the  plaintiff's  having  been  lawfully 
seized  and  possessed  of  the  premises  by  himself,  grantor,  ances- 
tor, or  predecessor. 

Actions  for  the  recovery  of  money  on  notes  or  written 
obligations  must  be  brought  within  four  years  after  the  cause 
of  action  accrued;  on  accounts,  within  two  years;  and  on  a 
judgment  of  a  Court  of  Record,  five  years. 

Time  deducted  for  absence  of  defendant  from  Territory. 

When  a  cause  of  action  has  arisen  in  another  State  or  Ter- 
ritory, or  in  a  foreign  country,  and  b}^  the  laws  thereof,  an 
action  thereon  cannot  there  be  maintained  against  a  person  by 
reason  of  the  lapse  of  time,  an  action  thereon  shall  not  be 
maintained  against  him  in  this  Territory,  except  in  favor  of 
one  who  has  been  a  citizen  of  this  Territory,  and  who  has  held 
the  cause  of  action  from  the  time  it  accrued. 


CHAPTER  V. 

ATTACHMENTS. 

Can  only  issue  upon  the  filing  of  an  affidavit  on  behalf  of  the 
plaintitt",  .showing  the  existence  of  a  debt  upon  contract,  specify- 
ing the  nature  and  amount  thereof,  as  near  as  may  be,  over  and 
above  all  legal  set-ofis  or  counter  claims;  that  the  same  has  not 
been  securetl  by  any  mortgage,  lien,  or  pledge  u[)on  rva.]  or 
personal  estate  within  the  Territory;  or  if  so  secured,  that  such 
security  has  been  rentlered  nugatory  by  the  act  of  the  defend- 
ant; that  the  ilefendant  is  not  residing  in  this  Territory;  or 
that  the  defendant  has  departed  the  Territory  or  county  wliere 
the  action  is  brought;  or  that  the  defendant  stands  in  defiance 
of  an  officer,  or  conceals  himself  so  that  process  cannot  be 


304 


Utah. 


[Part  10 


m 


i 


served  upon  him,  or  that  he  is  disposing  of  his  property  with 
the  intent  to  defraud  his  creditors;  that  the  debt  is  an  actual 
bona  fide  existing  demand  due  and  owing  from  tlie  defendant 
to  the  plaintiff,  and  that  the  action  is  not  sought  or  prosecuted 
to  hinder,  delay,  or  defraud  any  creditor  of  the  defendant. 

There  must  also  be  executed  and  tiled  an  undertaking,  with 
two  mficient  sureties,  in  a  sum  not  less  than  $200,  nor 
exceeding  the  amount  claimed  by  the  plaintiff,  conditioned, 
that  if  the  defendant  recover  judgment  in  the  action,  tlie 
plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  defend- 
ant, not  exceeding  the  amoiuit  specified  in  the  undertaking. 

In  cases  where  debtor  has  assigned  or  disposed  of  his  prop- 
erty, or  is  about  to  do  so,  with  intent  to  defraud  his  creditors, 
or  has  departed  or  is  about  to  depart  from  the  Territory,  to 
the  injury  of  his  creditors;  or,  fraudulently  contracted  the 
debt,  attachment  may  issue  before  the  obligation  becomes  due 
for  the  purpose  of  securing  the  obligation,  but  no  judgment 
shall  be  rendered  in  the  obligation  sued  on,  until  by  its  terms 
it  shall  become  due. 


5 

4 


j 

1 
1 

1 

CHAPTER   VI. 

ARRESTS  IN  CIVIL  ACTIONS. 

Are  issued  upon  filing  an  undertaking  and  affidavit,  the 
same  in  effect  as  those  required  in  attachment  cases,  except  that 
in  addition  to  the  liability  of  sureties  in  attachment  cases  for 
costs,  in  cases  of  arrest  they  are  liable  for  any  damage  which  the 
defendant  may  sustain  Ijy  reason  of  the  ariest,  not  exceeding  the 
sum  specified  in  the  undertaking,  and  the  undertaking  must  be 
in  a  sum  not  less  than  1?500.  In  either  case  the  sureties  must 
annex  an  affidavit  to  the  undertaking;  that  he  is  a  resident 
and  householder  or  freeholder  within  the  Territory,  and  worth 
double  the  sum  specified  in  the  undertaking,  over  and  above  all 
his  debts  and  liabilities,  exclusive  of  property  exempt  from 
execution. 


Chap.  6] 


Utah. 


:}05 


The  affidavit  in  cases  of  arrest  differs  from  attachment 
affidavits  only  in  this,  that  the  arrest  may  be  ma<le  in  any  ac- 
tion for  a  fine,  or  for  money  or  property  embezzled,  or  fraudu- 
lently misapplied,  or  converted  to  his  own  use  by  a  public 
officer,  or  an  officer  of  a  corporation,  or  an  attorney,  factor,  or 
broker,  agent  or  clerk,  in  the  course  of  his  employment,  or  by 
any  person  in  a  fiduciary  capacity  for  misconduct  or  ner,dect  in 
office,  or  in  a  professional  employment,  or  for  a  willful  violation 
of  duty,  or  in  an  action  to  recover  the  possession  of  personal 
property,  imjustly  detained;  when  the  property,  or  any  part 
thereof,  has  been  concealed,  removed  or  disposed  of,  so  that  it 
cannot  be  found  or  taken  by  the  United  States  Marshal,  his 
deputy,  or  the  Sheriff  or  his  deputy ;  or  where  the  defendant 
has  been  guilty  of  fraud  in  contracting  the  debt  or  incurring 
the  obligation  for  which  the  action  is  brought,  or  is  concealing 
or  disposing  of  the  property  for  the  taking,  detention  or  con- 
version of  which  the  action  is  brought;  or  when  the  defendant 
has  removed  or  disposed  of  his  property,  or  is  about  to  do  so, 
with  the  intent  to  defraud  his  creditors. 


!!■ 


CHAPTER   VII. 


JUDGMENTS  AND  JUDGMENT  LIENS. 


A  judgment  is  collectible  by  execution,  and  is  a  lien  upon 
the  real  estate  of  the  defendan'}  within  the  county  where  it  is 
rendered,  from  its  rendition;  executions  may  be  issued  to.  other 
counties,  but  the  judgment  constitutes  a  lien  there,  only  from 
the  time  of  filing  a  transcript  of  the  judgment  for  record  in 
the  office  of  the  County  Recorder  of  the  county  to  which  it  is 
sent. 

Lien  of  a  judgment  continues  for  five  j^ears  after  it&  ren- 
tlition. 


306 


Utah. 


[Purt  10 


m 


■k. 


CHAPTER  VIII. 

EXECUTIONS,   EXEMPTIONS,   SALES,   AND 
REDEMPTION. 

Property,  real  or  personal,  may  be  sold  on  twenty  days' 
notice,  inider  execution,  but  the  execution  may  issue  return- 
able in  not  less  than  ten  days  nor  more  than  ninety  days,  and 
the  execution  may  require  the  officer  to  satisfy  the  judgment 
in  the  particular  kind  of  money  ordered  in  the  ju<lgment. 

The  following  property  is  exempt  from  execution: 

1.  Chairs,  tables,  desks  and  books,  to  the  value  of  one 
hundred  dollars,  bf-longing  to  the  judgment  debtor. 

'2.  Necessary  household,  table  and  kitchen  furniture  be- 
longing to  the  judgment  debtor,  including  stoves,  not  to  exceed 
one  sto\'e  for  every  five  persons  of  the  family.  .Stovepipe  and 
stove  furniture,  wearing  apparel,  one  bed-stead,  one  bed,  and 
the  necessarj'  bedding  for  every  two  persons  in  the  family,  and 
provisions  and  fuel  for  the  family  sufficient  for  sixty  days. 

8.  The  faruiing  utensils  or  implements  of  husbandry  of 
the  juilguient  deVttor.  Also,  two  oxen  or  two  horses,  or  two 
mulos  and  their  harness;  one  cow  and  calf  for  every  five  per- 
sons in  the  family;  one  cart  or  wagon,  and  food  for  such  oxen, 
horses,  cows  or  nuiles  for  sixty  days;  also  all  seed  grain,  or 
vegetables,  actually  provided,  reserved,  or  on  hand,  for  the  pui-- 
pose  of  planting  or  sowing  at  any  time  within  the  ensuing  six 
months,  not  exceeding  in  value  one  hundred  dollars. 

4.  The  tools,  tool  chest  and  imple:iients  of  a  mechanic  or 
artisan  necessary  to  carry  on  his  trade.  The  instruments  and 
chests  of  a  surgeon,  physician,  surveyor  or  dentist,  necessary 
to  the  exercise  of  their  professions,  with  their  scientific  and 
professional  libraries,  and  the  law  library  of  an  attorney  or 
counselor,  and  the  libraries  of  ministers  of  the  gospel. 

5.  The  tent  or  cabin  of  a  miner,  including  a  table,  camp 
stools,  a  bed  and  bedding,  and  necessary  tools  used  in  mining, 
not  exceeding  the  value  of  four  hundred  dollars,  with  provis- 
ions necessary  to  his  support  for  thirty  days. 


If 


one 


,  camp 

Drovis- 


Cliap.  «] 


Utah. 


307 


G.  Two  oxen,  or  two  horses,  or  two  mules  and  their  har- 
ness, and  one  cart  and  wagon,  by  tlio  use  of  which  a  curtinan, 
teamster  or  other  laborer  Imbitually  earns  his  living,  and  food 
for  such  oxen,  horses  or  mules  for  sixty  daj's;  and  a  horse, 
harness  and  vehicle  used  by  a  physician,  surgeon,  or  minister 
of  the  gospel,  in  making  his  professional  visits. 

7.  One  sewing  machine,  not  to  exceed  in  value  one  hun- 
dred dollars,  in  actual  use  b}^  the  debtor  or  his  family.  If  the 
debtor  be  head  of  a  family,  then  there  shall  be  a  furthei  ex- 
emption of  five  head  of  sheep  and  the  Avool  therefrom  for  every 
pei'son  in  tlie  family,  two  hogs  and  three  pigs  under  three 
months  old,  and  the  necessary  food  for  all  such  animals  for 
sixty  daj's.  All  tlax  raised  by  the  debtor,  and  the  manufac- 
tures therefrom,  and  all  cloth  manufactured  in  the  famil}-  of 
the  debtor  for  their  own  use ;  all  spinning  wheels  and  looms 
and  other  instruments  of  domestic  labor  kept  for  family  use. 
The  earnings  of  such  debtor  of  his  personal  service,  or  those 
of  his  family,  at  any  time  within  sixty  days  next  preceding 
the  lev}-. 

8.  All  fire  engines,  hooks  and  ladders,  with  the  carts, 
trucks  and  carriages,  hose,  buckets,  implements  and  apparatus. 
All  furniture  and  uniforms  of  any  fire  company  or  department 
now  existing,  or  which  may  be  under  the  laws  of  this  Territory 
hereafter  oriianized. 

9.  All  arms,  ammunition,  imiforms  and  accoutrements  re- 
(|uireil  by  law  to  be  kept  by  a  person. 

10.  All  Court  Houses, jails,  public  offices  and  building- 
school  houses,  and  houses  of  public  worship,  lots,  grounds  and 
personal  property  appertaining  thereto.  Tlie  fixtures,  furni- 
ture, books,  papers  and  appurtenances  belonging  and  apper- 
taining to  the  Court  Hou.sc,  jail,  and  public  offices  belonging  to 
any  county,  or  for  the  use  of  schools  or  houses  of  public  wor- 
ship; and  all  cemeteries,  public  squares,  parks  and  places,  town 
halls,  houses  for  the  u.se  of  fire  departments  and  military  or- 
ganizations, and  the  lots  and  grounds  thereto  belonging,  or  held 
by  any  town  or  incorporated  city,  or  dedicated  to  such  town  or 


'ill  11- 


im 


308 


Utah. 


[Part  10 


city  to  health,  ornament,  or  public  use,  to  the  use  of  any  fire  or 
military  company  now  existing  or  hereafter  organized. 
11.     For  homestead  exemption,  see  "Homestead." 

Redemption. 

Of  real  property  may  be  made  by  the  defendant,  or  any  cred- 
itor subsequent  to  plaintiffs  lien,  at  any  time  within  six  months 
from  the  day  of  sale,  by  the  payment  of  the  purchase  money 
and  six  per  cent,  bonus,  and  from  a  redemptioner  within  sixty 
days  of  such  redemption. 


'Hi 


I 


,    !.^ 


CHAPTER  IX. 

PROCEEDINGS  IN  AID  OF  EXECUTIONS. 

On  the  return  by  i  Sheriff'  or  Marshal  of  an  executitjn 
"unsatisfied,"  the  judgment  creditor  upon  affidavit  or  otherwise 
showing  to  the  satisfaction  of  the  Court,  or  of  the  Judge  thereof, 
that  the  judgment  debtor  has  property  which  he  unjustly  re- 
fuses to  apply  toward  the  satisfaction  of  the  judgment,  may 
apply,  and  the  Court  or  Judge  may,  by  an  order,  require  the 
judgment  debtor  to  appear  at  a  specified  time  and  place  before 
such  Judge,  or  a  referee  appointed  by  him,  to  answer  under 
oath  concerning  the  same;  and  such  proceedings  may  there- 
upon be  had  for  the  application  of  the  property  of  the  judg- 
ment debtor  toward  the  satisfaction  of  the  judgment,  as  are 
provided  upon  the  return  of  an  execution,  that  is,  to  require 
the  appearance  of  witnesses,  and  hear  the  same,  and  make  or- 
ders in  relation  thereto.  And  on  proof,  by  affidavit,  or  other- 
wise, that  any  person  or  corporation  has  property  of  such  judg- 
ment debtor,  or  is  indebted  to  him  in  an  amount  exceeding  850, 
the  Judge  may  by  order  recjuire  such  person,  or  corporation,  or 
any  officer  or  member  thereof,  to  appear  at  a  .specified  time  and 
place  before  him,  or  a  referee  appointed  by  him,  and  answer 
concerninir  the  same. 


Chap.  9] 


Utah. 


309 


The  Judge  or  referee  may  onler  any  property  of  the  judg- 
ment debtor  not  exempt  from  execution  in  the  hands  of  such 
debtor,  or  any  other  pei'son,  or  due  to  the  jud^'inent  debtor,  to 
be  applied  toward  the  .satisfaction  of  the  judgment. 

If  it  appear  that  a  person  or  corporation,  alleged  to  have 
property  of  the  judgment  ilebtor  or  indebted  to  him,  claims  an 
interest  in  the  property  adverse  to  him,  or  denies  the  debt,  the 
Court  or  Judge  may  authorize,  by  an  order  made  to  that  ett'ect, 
the  judgment  creditor  to  institute  an  action  against  such  per- 
son or  corporation  f(ji'  the  reccjvery  of  such  interest  or  debt; 
and  the  Court  or  Judge  may,  by  order,  forbid  a  transfer  or 
other  disposition  of  such  interest  or  debt,  unf  ,  an  action  can 
be  commenced  and  prosecuted  to  judgment.  Such  order  may 
be  modified  or  vacated  by  the  Judge  granting  the  same,  or  the 
Court  in  which  the  action  is  brought,  at  any  time,  on  .such 
terms  as  may  be  just. 


CHAPTER  X. 

SECURITY  FOR  COSTS. 

It  i.s  made  the  duty  of  the  Clerk  of  the  District  Court,  in 
all  civil  actions,  to  require  the  party  commencing  the  suit  to 
pay  in  advance,  or  secure  b)'^  bond,  with  security,  the  payment 
of  the  probable  amount  of  the  costs  of  the  action,  provided 
that  the  said  costs  shall,  at  the  conclusion  of  the  trial,  be  paid 
by  the  party  against  whom  said  costs  are  adjudged  by  the 
Court. 


I 


m 


CHAPTER  XI. 

APPEALS. 

From  Justices'  Courts  to  the  proper  District  Couit  may  be 
taken  any  time  within  thirty  days  after  rendition  of  judgment, 
except  where  the  judgment  is  for  an  amount  less  than  §20,  by 


Ilnfi 


310 


Utah. 


[Part  10 


Mii 


Prt 


tiling  a  notice  of  such  appeal,  ani.l  serving  a  copy  on  the  oppo- 
site party;  anil  by  tiling  with  the  Justice,  within  five  clays 
after  tiling  tlie  notice  '^f  appeal,  an  untjertaking  with  two  good 
sureties,  who  shall  justify  under  oath. 

Appeals  from  the  District  Court. 

May  he  taken  to  the  Supreme  Court  from  any  Jincd  judg- 
ment or  order  in  a  civil  action,  except  when  expressly  made 
final  by  the  act,  any  time  within  one  year  after  the  rendition 
of  judgment.  From  any  order  granting  or  refusing  a  new  trial, 
or  from  an  order  granting  or  dissolving  an  injunction,  or  from 
an  order  refusing  to  grant  or  dissolve  an  injunction,  and  from 
any  special  order  made  after  the  tinal  judgment,  within  sixty 
<]ays  after  the  order  is  made  and  entered  upon  the  nainutes  of 
the  Court;  or  from  any  interlocutory  judgn\ent  or  order  in 
cases  of  partition,  sale  or  division,  to  be  taken  within  sixty 
days  after  the  rendition  of  the  same. 

The  appeal  is  taken  by  tiling  with  the  Clerk  of  the  Court 
with  whom  the  judgment  or  order  appeal  from  is  entered,  a 
notice  stating  the  appeal  from  the  same,  or  some  specitic  part 
thereof,  and  serving  a  copy  of  the  notice  on  the  adverse  party 
or  his  attorney.  To  render  the  appeal  etfectual  for  any  pur- 
pose, in  any  case,  a  written  undertaking  shall  he  executed  on 
the  part  of  the  appellant,  by  at  least  two  sureties,  to  the  ettect 
that  the  appellant  will  pay  all  (himages  and  costs  which  may 
be  awarded  against  liim  on  the  appeal ;  or  a  sum  not  exceeding 
SlOO  shall  be  deposited  with  the  Clerk  with  whom  the  judg- 
ment or  order  was  entered,  to  abide  the  event  of  the  appeal; 
such  undertaking  shall  be  tiled,  or  such  deposit  made  with  the 
Clerk,  within  at  least  five  days  after  the  notice  of  appeal  is  tiled. 

An  appeal  from  a  judgment  or  onler  for  the  payment  of 
money  shall  not  .stay  the  execution  of  the  judgment  or  order, 
unless  a  written  undertaking  is  executed  on  the  part  of  the 
appellant,  by  two  or  more  sureties,  stating  the'ir  places  of  resi- 
dence and  occupation,  to  the  etiect  that  they  are  bouml  in 
double  the  amount  named  in  the  judgment  or  order  appealed 
from;  and  .should  the  judgment  or  order  appealed  from,  or  any 


Chap.  11] 


Utah. 


311 


part  tlierc^of,  be  affirmed,  the  appellant  shall  pay  the  amount 
directed  to  be  paid  by  the  judgment  or  order,  or  the  part 
thereof  which  .shall  be  affirmed,  and  all  damages  and  costs 
which  may  be  awarded  against  the  appellant,  and  in  the  kind 
of  money  in  which  the  Court  to  which  it  is  appealed  shall 
order  the  payment  thereof. 

The  sureties  shall  file  affidavits  as  to  their  worth,  over  all 
just  debts  and  liabilities,  exclusive  ol'  p/operty  exempt  from 
execution. 

When  the  appeal  shall  be  thus  perfected,  it  shall  stay  all 
proceedings  upon  the  judgment,  until  the  action  of  the  appel- 
late Court  shall  lie  had.  The  appellee  may  object  to  the  sure- 
ties, as  to  their  sufficiency,  and  if  the  objection  be  well  taken, 
and  the  appellant,  upon  live  days'  notice,  fail  to  give  additional 
security,  the  apy>eal  shall  be  regarded  as  i.'"  not  taken. 

Upon  trial  in  the  appellate  Court,  the  successful  party  is 
entitled  to  lia\i'  the  jodgment  remitted  to  the  Court  from 
which  the  appeal  was  taken  for  execution. 


ii'uM 


CHAPTER  XII. 


EST\TES  OF  DECEASED  PERSONS. 

Claims  against  deceased  estates  must  be  made  within  ten 
months  after  notice  of  administi-atioti  is  given 

Satisfactory  proof  of  the  amount  due  must  iie  made  to  the 
Administrator  and  Probate  Court. 

The  executor  or  administrator  of  the  estate  has  as  long  to 
make  final  settlement  in  as  the  Probate  Court  will  permit, 
which  is  usually  as  long  as  he  can  show  any  unsettled  busi- 
ness t)f  the  estate. 

The  widow  or  other  members  of  the  family  are  entitled  to 
the  homesteail,  and  such  further  allowances  as  the  Probate 
Court  ma}'  decir  proper  for  the  maintenance  of  the  widow. 

The  largest  discretion  is  given  the  t?ourt  in  making  orders 
respecting  i\w  estate. 


312 


Utah. 


[Part  10 


■( 


*  ;■ 


CHAPTER  XIII. 

HOMESTEADS. 

T  ,ere  shall  be  allowed  homestead  exemptions,  to  be  selected 
by  the  debtor,  consisting  of  lands  and  appurtenances  thereon, 
not  exceeding  in  value  one  thousand  dollars  for  the  judgment 
debtor,  and  the  further  sum  of  two  hundred  and  fifty  dollars 
for  each  member  of  the  family  (which,  in  some  instances, 
amount  to  thirty  or  forty,  including  wives  and  children).  If 
the  premises  amount  in  value  to  more  than  the  homestead  ex- 
emption, it  may  be  ordered  sold  or  partitioned,  and  in  case  of 
sale,  the  excess  over  the  exemption  valuation  is  subject  to 
execution;  and  in  case  of  partition,  the  part  divided  off  from 
the  homestead  is  subject  to  sale  on  execution,  the  valuation  to 
be  made  by  persons  chosen  by  the  debtor  and  the  officers  hav- 
ing the  execution. 


CHAPTER  XIV. 

DEPOSITIONS. 

May  be  taken  in  any  action  at  any  time  after  service  of 
sununons,  or  the  appearance  of  the  tlefendant,  and  in  a  special 
proceeding  after  a  question  of  fact  has  arisen  therein,,  in  the 
following  cases: 

1.  When  a  witness  is  a  party  to  the  action  or  proceeding, 
or  a  person  for  whose  inunediate  benefit  the  action  or  proceed- 
ing is  prosecuted  or  defended. 

2.  When  the  witness  resides  out  of  the  county  in  vhieli 
his  testimony  is  to  ho  used. 

3.  When  the  witness  is  about  to  leave  the  county  where 
the  action  is  to  be  tried,  and  will  probably  continue  aUsent 
when  liis  testimony  is  retjuircij. 


Chap.  14] 


Utah. 


313 


4.  When  the  witnes.s,  otherwise  liable  to  attend  the  trial, 
is  too  infirm  to  attend,  or  resides  within  the  county,  but  more 
than  fifty  miles  from  the  place  of  trial. 

Either  party  may  have  a  deposition  of  a  witness  taken  be- 
fore a  Notary  Public,  Justice  of  the  Peace,  Judge,  or  Clerk  of 
a  Court,  by  serving  notice  on  the  adverse  party  of  the  time 
and  place  of  the  examination,  together  with  a  copy  of  the  affi- 
davit showing  the  case  to  be  one  of  the  kind  above  mentioned. 
The  notice  must  be  served  at  least  five  days,  and  one  additional 
day  for  every  twenty-five  miles  of  distance  of  the  place  of  ex- 
amination from  the  residence  of  the  person  served,  unless  for 
cause  the  Court  prescribes  a  shorter  time. 

The  witness  may  be  cross-examined,  and  after  having  his 
testimony  carefully  examined  and  read  to  him,  he  shall  sign  it; 
and  the  officer  taking  the  deposition  shall  certify  it  up  to  the 
proper  Court,  inclosed  in  an  envelope,  and  addressed  to  the 
Clerk  of  the  Court  in  which  the  action  is  pending,  or  to  .such 
person  as  the  parties  may  agree  upon,  or  trnnsniit  through  the 
mail ;  and  such  deposition  may  be  used  h\  r  party  on  the 

trial.  No  objections  to  the  form  of  an  int^  iioj^atory  at  t>e 
trial  will  be  heard,  unless  made  at  the  time  of  tak'  ;  if  the 
partv  making  the  objection  is  in  attendance  at  the  takini; 

If  a  deposition  be  taken  on  account  of  the  absence  from 
the  county,  or  intended  absence,  or  because  the  witness  is  too 
infirm  to  attenil,  before  V)eing  used  proof  must  be  made  by 
affidavit  or  oral  testimony  that  the  witness'  disability  contin- 
ues, to  the  best  of  affiant's  knowledge.  The  deposition  may 
be  read  in  case  of  his  deatli. 

Depositions  once  taken  may  be  read  in  any  stage  of  the 
cause  by  either  party,  and  sliall  be  deemed  evidence  of  the 
party  reading  them. 

If  a  deposition  be  taken  out  of  the  Territory,  it  must  be 
upon  a  commission  issued  V)y  the  Court,  under  its  seal,  upon 
five  days'  notice  to  the  a<lverse  party  of  the  application  for  a 
comnussion,  and  shall  be  issued  to  a  person  to  be  agreed  upon 
between  the  parties;  and  in  case  of  disagreement,  then  to  such 


314 


Utah. 


[Part  10 


li' 


11, 
l4l 


¥ 


t  :-. 


person  as  the  Court  may  appoint,  or  to  a  Commissioner 
appointed  by  the  Governor  of  this  Territory  to  take  affidavits 
and  depositions  in  the  States  or  Territories. 

Such  interroffatories,  direct  and  cross,  as  the  parties  pre- 
pare, or  in  case  of  disagreement,  such  as  the  Court  shall  settle, 
shall  be  annexed  to  the  commission.  The  cause  shall  not  be 
continued  on  account  of  tin;  non-return  of  the  commission  and 
deposition,  unless  upon  evidence  satisfactory  to  the  Court  tliat 
the  testimony  of  the  witness  is  necessary,  and  that  proper  dili- 
gence has  been  used  to  obtain  it. 

The  statute  also  provides  for  the  taking  of  testimony,  and 
for  its  perpetuation,  upon  application  to  the  Court,  .showing 
that  the  applicant  expects  to  be  a  party  to  an  action  in  this 
Territory,  and  giving  the  names  of  persons  whom  he  exj^ccts 
will  be  adverse  parties;  that  the  proof  of  some  facts  is  neces- 
sary to  perfect  the  title  to  property  in  which  he  is  interested, 
or  to  establish  a  marriage,  descent,  heirshij),  or  any  other  mat- 
ter which  it  may  hereafter  become  material  to  estal)lish, 
though  no  suit  may  at  the  time  be  anticipated.  The  names 
of  the  witneses  and  the  general  outline  of  the  facts  expected 
to  be  proven,  to  be  stated.  Affidavits  or  other  proofs  filed  with 
the  testimony  shall  be  prima  facie  evidence  of  the  facts  statcl 
therein.  No  particular  form  of  the  certificate  of  the  officer 
taking  the  deposition  is  prescribed  by  the  statute. 


w 


i^^H^ 


:SS 


CHAPTER  XV. 

JUDICIAL  RECORDS,   HOW  PROVEN. 

A  judicial  record  of  this  Territory,  or  of  the  I  "nited  States, 
or  of  any  State  or  Territory  of  the  United  Stat<  .  nuiy  be  ad- 
mitted in  the  Courts  of  this  Territory  by  the  nttcstation  of  the 
Clerk,  with  the  seal  of  the  Court  annexed,  together  with  the 


Chap.  15] 


Utah. 


315 


certificate!  of  tlie  Judge,  Chief  Justice,  or  presiding  Magistrate, 
as  the  case  may  be,  that  said  attestation  is  in  due  form. 

A  judicial  record  of  a  foreign  country  may  be  proved  by 
the  production  of  a  copy  thereof,  certified  by  the  Clerk,  with 
the  seal  of  the  Court  annexed,  if  there  be  a  Clerk  and  seal,  to 
be  a  true  copy  of  such  record,  together  with  a  certificate  of  the 
Judge  of  the  Court,  that  the  person  making  the  certificate  is 
the  Clerk  of  the  Court,  or  the  legal  keeper  of  the  records;  and 
in  ei(  tier  case,  that  the  signature  is  genuine,  and  the  certificate 
in  due  form;  together  with  the  certificate  of  the  Minister  or 
Embassador  of  the  United  States,  or  of  a  Consul,  Vice-Consul 
or  Consular  Agent  of  the  United  States,  in  such  foreign  coun- 
try, that  there  is  such  a  Court,  specifying  generally  its  juris- 
diction, and  verifying  the  signature  of  the  Judge  and  Clerk,  or 
other  legal  keeper  of  the  record. 

A  copy  of  the  judicial  record  of  a  foreign  country  shall  also 
be  adTnissible  in  evidence,  upon  proof,  first,  that  the  copy  offer- 
ed has  been  compared  by  the  witness  with  the  original,  and  is 
an  exact  transcript  of  the  whole  of  it;  and  that  such  original 
was  in  the  custotly  of  the  Clerk  of  the  Court,  or  other  legal 
keeper  of  the  same;  and  that  the  copy  is  duly  attested  by  the 
seal  which  is  proved  to  be  the  seal  of  the  Court  where  the 
record  remains,  if  it  be  the  I'ecofd  of  a  Court;  or  if  there  be  no 
such  seal,  or  if  it  be  not  the  record  of  a  Court,  by  the  signature 
of  the  legal  keeper  of  the  original. 


!ii 


'IM; 


■ ;,.! 


CHAPTER  XVI. 
ACKNOWLEDGMENTS. 


Deeds,  mortgages,  powers  of  attorney,  or  other  instruments 
affecting  the  title  to  real  estate,  must  be  acknowledged  or 
proved  and  witnessed  by  one  or  more  witnesses  before  they 
can  be  legally  placed  upon  record. 


I  iill 


316 


Utah. 


[Part  10 


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ill; 


The  folio win£T  is  the  form  of  the  acknowledgment  certificate : 


State  or  Territory  of- 


I 


ss. 


County,  j 

On  this day  of A.  d.  189 — ,  personally  appeared 

before ,  a  Notary  Public  in  and  for  said  county, , 

who  is  personally  known  to  me  to  be  the  person  described  in 
and  who  executed  the  foregoing  instrument,  who  acknowledged 
to  me  that  he  executed  the  same  freely  and  voluntarily,  and 
for  the  uses  and  purposes  therein  mentioned.  In  witness 
whereof,  I  have  hereunto  set  my  hand  and  official  seal,  on  the 
day  and  year  last  above  written.  , 


[seal.] 


Notary  Public. 


A  married  woman  may  release  her  dower  by  uniting  in  the 
conveyance  with  her  husband,  and  acknowledging  the  same  in 
the  same  form  as  a  fevime  sole. 

The  following  officers  are  authorized  to  take  acknowledcj- 
ments  and  certify  to  them: 

If  acknowledged  or  proven  within  this  Territory:  by  some 
Judge  or  Clerk  of  a  Court  having  a  seal,  or  some  Notary  Pub- 
lic, or  County  Recorder,  or  by  a  Justice  of  the  Peace  of  the 
county  where  the  conveyance  is  executefl,  and  to  be  recorded. 

If  acknowledged  or  proved  out  of  the  Territory,  and  within 
any  State  or  Territory  in  the  United  States:  by  some  Judge  or 
Clerk  of  any  Court  of  the  United  States,  or  of  any  State  or 
Territory  having  a  seal,  or  by  a  Notary  Public,  or  by  a  Com- 
missioner appointed  by  the  Governor  of  this  Territory  for  that 
purpose. 

If  acknowledged  or  proved  without  the  United  States:  by 
some  Judge  or  Clerk  of  any  Court  of  any  State,  Kingdom,  or 
Empire  having  a  seal,  any  Notary  Public  therein,  or  any  Mni- 
ister.  Commissioner,  or  Consul  of  the  United  States  appointed 
to  reside  therein.  Such  officers  may  take  and  certify  such 
proofs  or  acknowledgments  by  their  respective  deputies,  in  the 
names  uf  their  principals. 


Chap.  16] 


Utah. 


317 


When  granted  by  a  Judge  or  Clerk,  the  certificate  .shall  bo 
under  the  .seal  of  his  Court. 

When  granted  by  an  officer  who  has  an  official  seal,  it  shall 
be  under  .such  seal. 

By  a  Justice  of  the  Peace,  under  his  hand. 


CHAPTER  XVII. 

PARTNERSHIPS. 

The  statute  provides  how  partners  may  be  summoned,  and 
how  judgments  against  partners  may  be  rendered,  but  is  thus 
brief  and  pointed.  , 

When  two  or  more  pex'sons,  associated  in  any  business, 
transact  such  business  in  a  common  name,  whether  it  com- 
prises the  names  of  such  persons  or  not,  the  associates  may  be 
sued  by  such  common  name,  the  summons  in  such  cases  being- 
served  oh  one  or  more  of  the  associates,  but  the  judgment  in 
such  cases  shall  bind  only  the  joint  property  of  the  associates. 
The  private  property  of  persons  engaged  in  copartnership  shall 
be  held  liable  for  the  debts  of  the  firm,  only  when  the  part- 
nership property  shall  prove  insufficient  to  pay  them.  The 
assignment  of  a  partner  in  trade  to  satisfy  a  creditor  of  the 
firm  shall  be  deemed  valid  in  law,  but  is  not  to  be  construed 
to  authorize  the  assignment  of  partnership  efiects  to  satisfy 
individual  claims  of  any  of  the  parties. 


CHAPTER  XVIII. 

MARRIED  WOMEN. 

All  property  owned  by  either  spouse  before  marriage,  and 
that  ac(iuired  after  marriage  by  gift,  beijuest,  devise,  or  de- 
scent, is  the  separate  property  of  that  spouse  by  whom  the 
.same  is  owned  or  acquired;  and  as  such  may  be  held,  owned 


W\- 


318 


Utah. 


[Part  10 


!" 


and  controlled,  and  transferred  and  disposed  of  by  the  spouse 
so  owning  or  acquiring  it,  without  any  limitation  or  restric- 
tion by  reason  of  marriage. 

Either  spouse  may  sue  and  be  sued  in  law.  Married  women 
have  dower  in  all  real  estate  held  or  possessed  by  the  husband 
during  coverture. 


CHAPTER  XIX. 

CORPORATIONS. 

Any  number  of  persons,  not  less  than  five,  one-third  of 
whom  being  residents  of  the  Territory,  may  incorporate  for 
purposes  of  manufacturing,  mining,  or  conducting  any  com- 
mercial or  other  industrial  pursuits,  or  for  constructing  roads, 
ditches,  colonization  and  improvements  for  lands,  colleges,  semi- 
naries, churches,  libraries,  or  any  benevolent,  charitable,  chris- 
tian or  scientific  associations,  or  for  any  rightful  subject  con- 
sistent with  the  Constitution  of  the  United  States  and  the 
laws  of  the  Territory. 

Stock  may  be  subscribed  and  paitl  up  in  property.  No 
individual  liability  upon  stockholders.  The  Probate  Judge  is 
the  officiating  officer  in  effecting  an  incorporation. 

Foreign  corporations  must  file  copies  of  their  articles  of  in- 
corporation with  the  Probate  Judge  of  the  county,  when  their 
principal  place  of  business  is  located  in  this  Territory,  and 
must  designate  an  agent  on  whom  process  may  be  served;  also 
file  copies  of  their  articles  of  incorporation  with  the  Secretary 
of  State. 


SI 


CHAPTER  XX. 
CHATTEL  MORTGAGES. 

No  mortgage  of  personal  property  shall  be  valid  against 
the  rights  an<l  interests  of  any  person  (other  than  the  parties 
thereto),  unless  the  possession  of  such  personal  property  be 


Chap.  20] 


Utah. 


319 


delivered  to,  and  retained  by  the  mortgagee,  or  unless  the 
mortgagee  provide  that  the  property  may  remain  in  the  posses- 
sion of  the  mortgagoi",  and  bo  accompanied  by  an  affidavit  of 
the  parties  thereto,  or  in  case  any  party  is  absent,  an  affidavit 
of  the  parties  present,  and  of  the  agent  or  attorney  of  such 
absent  party,  that  the  same  is  made  in  good  faith  to  secure  the 
amount  named  therein,  and  without  any  design  to  hinder  or 
delay  the  creditors  of  the  mortgagor. 

Every  mortgage  of  personal  property  shall  Ije  witnessed, 
acknowledged  by  the  mortgagor,  or  person  executing  the  same, 
and  recorded. 

Any  mortgage  of  personal  property  acknowledged  and  re- 
corded, shall  thereupon,  if  made  in  good  faith,  be  good  and 
valid  as  against  the  creditors  of  the  mortgagor,  and  subse(|uent 
purchasers  and  mortgagees,  from  the  time  it  is  so  filed  for 
record  until  the  maturity  of  the  entire  deljt  or  obligation  for 
the  se  city  of  which  the  same  was  given,  and  for  a  period  of 
ninety  days  thereafter;  provided,  the  entire  time  shall  not 
e.xceed  one  year. 

Personal  propert}'  mortgaged  may  be  taken  on  attachment,  if 
any  legal  cause  for  attachment  exist,  or  on  execution  issued  at 
the  suit  of  a  creditor  of  the  mortgagor,  but  before  the  property 
is  so  taken,  the  officer  must  pay  or  tender  the  mortgagee  the 
amount  of  the  mortgage  debt  and  interest  at  the  place  where 
by  its  terms  it  is  made  payable,  if  such  place  is  within  this 
Territory.  If  it  specifies  no  place  of  payment,  or  if  it  be  pay- 
able without  this  Territory,  then  he  must  deposit  the  amount 
thereof  with  the  County  Treasurer  of  any  county  wherein  the 
mortgage  is  recorded,  payable  to  the  mortgagee,  or  his  order. 

Any  mortgagor,  agent,  servant  or  employee  of  anj-  luort- 
gagor  of  personal  property,  who  shall,  during  the  time  such 
mortgage  remains  in  force,  destroy,  conceal,  sell,  or  otherwise 
ilispose  of  the  whole  or  any  part  of  the  property  mortgaged,  or 
who  shall  remove  the  same  or  any  part  thereof  from  the  Teni- 
tory,  without  the  written  consent  of  the  morgagee,  his  legal 
representative  or  assigns,  shall  be  deemed  guilty  of  obtaining 
money  under  false  pretenses,  and  on  conviction  thereof  shall  be 


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Utah. 


[Part  10 


punished  by  a  fine  not  exceeding  three  times  the  value  of  the 
property  (.lescribed  in  the  mortgage,  or  by  imprisonment  in  tho 
county  jail  not  more  than  six  months,  or  by  both  such  fine  and 
imprisonment,  at  the  discretion  of  the  Court. 

Nothing  herein  contained  shall  authorize  any  person  to 
mortgage  any  part  or  portion  of  such  person's  personal  prop- 
erty as  may  be  by  law  exempt  from  seizure  and  sale  under 
execution,  except  as  security  for  the  purchase  money  therefor. 


CHAPTER  XXI. 

INTEREST  AND  USURY. 

Ten  per  cent,  per  annum  interest  is  allowed  on  debts  due, 
where  no  contract  as  to  interest  exists.  There  is  no  usury 
statute,  and  parties  are  at  liberty  to  contract  for  rates  of  in- 
terest without  limit,  and  any  agreed  rate  is  collectible. 


m< : 


m 


CHAPTER  XXII. 
INSOLVENCY. 

There  is  no  insolvency  law  in  this  Territory. 


PART  XI. 


British  Columbia. 


Prepared  Expressly  for  this  Work  by  M.  W.  T.  Drake,  Victoria. 


CHAPTER   I. 


II 


COURTS— THEIR  JURISDICTION  AND  TERMS. 

The  Supreme  Court  is  presided  over  by  a  Chief  Justice  and 
four  puisne  Judges.  This  Court  exercises  a  legal  and  equitable 
jurisdiction  in  all  matters.  It  has  sole  control  over  the  estate 
of  infants,  lunatics  and  deceased  persons,  and  claims  a  jurisdic- 
tion in  divorce  and  matrimonial  causes.  The  admiralty  juris- 
diction of  the  Province  is  vested  in  the  Chief  Justice  alone. 
The  Supreme  Court  is  the  Cnirt  of  Appeal  from  all  inferior 
tribunals,  and  from  it  there  is  an  appeal  to  the  Supreme  Court 
of  Canada  and  Privy  Council  of  England. 

The  Judges  also  sit  as  Judges  of  assize  for  the  trial  of 
criminals. 

The  Courts  sit  when  required  for  the  purpose  of  disposing 
of  law  points  reserved  at  trials,  for  hearing  of  motions  for  new 
trials,  appeals,  special  cases,  etc. 

For  matters  of  procedure  the  Judges  sit  constantly. 

The  A.ssize  Courts  are  held  three  times  a  year,  for  the  trial 
of  prisoners;  civil  causes  are  heard  whenever  ripe  for  trial. 
The  Assize  Courts  are  held  all  through  the  province,  the  Judges 
going  ori  circuit  for  the  purpose. 


f 

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322 


BuiTisii  Columbia. 


[Part  11 


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All  matters  not  jury  cases  arc  disposed  of  by  the  Court  on 
application. 

The  County  Court  is  la-Id  for  the  trial  of  actions  of  debt 
or  damage  up  to  $1000.  Actions  of  ejectment,  libel,  false  im- 
prisonment, and  some  others,  are  excluded  a-om  the  cognizance 
of  these  Courts.  - 

This  Court  is  held  every  month,  and  disposes  of  the  cases 
brought  before  it  without  pleadings,  and  in  a  summary  and 
expeditious  manner.  The  Province  is  divided  into  six  dis- 
tricts for  this  purpose. 

The  Ju.stices  of  the  Peace  have  no  civil  jurisdiction.  The 
Justices  examine  into  all  criminal  cases,  and  if  a  prima  facie 
case  is  made  out  hold  the  accused  for  trial.  At  the  assizes 
and  after  committal,  the  case  goes  before  the  grand  jury,  and  if 
a  true  bill  is  found  the  prisoner  is  put  on  his  trial;  if  no  bill  is 
found  he  is  at  once  discharged. 

The  municipalities  have  also  limited  jurisdiction  for  enforc- 
ing their  By-Laws. 


CHAPTER  II. 


COMMENCEMENT  OF  SUITS. 


Civil  suits  in  the  Supreme  Court  ai'o  conunenced  by  writ 
of  summons,  to  which  the  defendant  has  to  appear  in  eight 
days;  if  he  fails  to  appear  after  due  service,  the  plaintiti'  signs 
judgment  for  his  debt;  if  he  appears,  the  plaintiff  proceeds  to 
state  his  cause  of  action  in  a  pleading  called  a  stateorient  of 
claim,  to  which  the  defendant  replies  by  a  statement  of  defense, 
and  in  the  majority  of  cases  the  action  being  thus  put  in  is.sue 
is  set  down  for  trial;  but  any  neglect  of  the  defendant  to  pro- 
ceed according  to  che  rule,  subjects  him  to  the  penalty  of  hav- 
ing judgment  signed  against  him.  In  some  cases  the  pleadings 
extend  considerably  beyond  this,  until  at  last  they  arrive  at 
issue  and  are  then  ripe  for  trial. 


Chap.  2] 


British  Columbia. 


323 


In  the  generality  of  cases  u  juiy  is  rot  .suninionetl  unless  at 
the  refjuest  of  either  plaintiff  or  defendant,  but  the  Judge  di.s- 
poses  of  both  law  and  fact. 

In  actions  on  simple  contract  debts  the  defendants  are  not 
allowed  to  defend  except  on  special  ground  shown  in  affidavits. 

All  writs  must  be  personally  served,  unless  the  defendant  is 
keeping  out  of  the  way  to  avoid  service,  and  then  the  Court 
all  ows  substitu'  t'd  service.  If  the  defendant  is  abroad,  whether 
a  foreigner  or  not,  special  f(jrms  of  writ  arc  provided,  but  the 
service  must  be  personal. 

Suits  can  be  disposed  of  at  any  place  the  plaintiH  fixes; 
liable  to  be  chanffed  on  good  cause  shown. 

There  is  no  distinction  in  the  form  of  suit  between  law  and 
equity,  and  the  principles  of  ecjuity  control  all  cases. 

The  new  English  Judicature  Acts  have  been  adapted  to  the 
.'rovince,  greatly  fac'litating  the  collection  of  debts. 


CHAPTER    III. 

LIMITATION  OF  ACTIONS. 

Six  years  is  the  limitation  of  all  simple  contract  debts; 
twenty  years  for  all  speciality  debts.  In  case  the  cause  of 
action  arose  in  a  foreign  country,  the  tlefendant  may  plead  the 
statute  of  limitations  of  such  country  as  a  bar.  A  foreign 
judgment  is  placed  on  the  same  footing  as  a  simple  contract 
debt,  and  has  to  be  sued  within  the  same  time. 


CHAPTER  IV. 

ATTACHMENTS  — ARRESTS    IN    CIVIL    ACTIONS. 

Attachments  are  not  allowed,  except  the  debtor  has  ali- 
sconded. 

Arrest  in  civil  actions  is  in  practice  only  resorted  to  for  the 
pu)-pose  of  compelling  a  defendant  who  is  about  to  leave  the 


m 


m' 


324 


British  Columbia. 


[Part  11 


jurisdiction  to  give  secu  '  y  for  the  alleged  debt.  The  Sheriff 
keeps  hiia  in  chaige  until  he  has  put  in  security,  or  until  the 
trial  of  the  action.  There  is  no  inipri-sonnient  for  debt;  but  in 
case  a  judgment  debtor  is  about  to  abscond,  he  can  be  arrested 
upon  an  order  of  the  Supreme  Court,  which  can  be  obtained 
on  certain  facts  being  proved.  County  Court  Judges  have 
power  of  committal  for  disobedience  of  orders  for  payment  of 
money. 


CHAPTER  V. 


I  ii 


JUDGMENTS  AND  JUDGMENT  LIENS. 

A  judgment  binds  the  lands  of  a  debtor  when  registered. 
It  also  enables  a  creditor  to  seize  the  goods  of  his  (iebtor,  or  to 
compel  payment  of  debts  due  to  the  debtor,  to  himself,  uniler 
what  are  called  garnishee  proceetlings;  but  a  judgment  "loes 
not  l)ind  the  personal  property  of  the  debtor  until  tlie  writ  of 
execution  is  in  the  hands  of  the  Sheritf. 


CHAPTER    VI. 

EXECUTIONS — EXEMPTIONS  -  REDEMPTION  — 

SALE.. 

Executions  are  enforced  against  the  land  a.nd  personalty  of 
the  debtor. 

The  debtor  i>t  entitled  to  an  <'xemi)tion  of  five  hundred  dol- 
lars in  p(!rsonaIty. 

For  homestcH<l  exemption  stv  "  Homesteatis." 

The  debtor  may  nMlecm  hi'^  prf)perty  at  any  time  before 
sale.  Personal  property  has  to  l)e  st)ld  with(»i;t  any  delay,  ant! 
by  public  auction.     Real  i)roperty  is  advcrtiseil  thirty  days. 


Clmp.  7] 


British  Columbia. 


825 


CHAPTER  VII. 

SECURITY  FOR  COSTS. 

Is  alwaj's  required  when  the  plaintiff  is  resident  out  of  the 
jurisdiction  of  the  Court,  in  an  amount  of  one  hundred  (ioUars; 
but  if  within  the  jurisdiction,  he  may  commence  actions  in 
forvia  pauperia,  if  he  is  not  in  a  position  to  pay  fees. 


CHAPTER  VIII. 

APPEALS. 

Are  allowed  from  the  County  Courts  to  tlie  Supreme  Court, 
if  notice  given  within  10  days  after  the  decision  is  objected  to; 
from  til'"  Police  and  Magistrate  Courts  to  the  Supreme  Court, 
if  appliia  ror  in  four  days;  from  the  Supreme  Court  to  the 
Privy  Council  of  En-laiid,  or  the  Supreme  Court  of  Canada,  if 
the  amount  in  dispute  is  over  fifteen  hundred  dollars.  Secur- 
ity required  is  five  hundred  dollars  in  the  two  latter  eases. 


\':t- 


i 


CHAPTER  IX. 

ESTATES  OF  DECEASED  PERSONS, 

Intestate  estates,  when  there  is  no  next  of  kin  or  crot.litor 
who  desires  achuinistration.are  managed  by  the  registrar  of  the 
Supreme  Court  as  administrntor.  There  is  no  statutable  time 
for  sencHng  in  claims,  but  e^  ery  estate  is  advertised  ami  a  time 
fixed  for  distribution.  The  claims  have  to  be  sworn  to — if 
from  a  foreign  country — before  a  Notary  Public,  attestetl  by 
the  British  Embassador.  Consul, or  (Vunyc  (/'j4fm»/v«.  Twelve 
montlis  is  the  time  allowed  to  settle  the  estate,  whether  the 
deceased  died  intestate  or  not.  If  the  deceased  left  a  will 
legally  executed,  his  executors  manage  the  estate  witlumt  filing 
any  security,  and  only  file  accounts  at  the  end  of  the  twelve 
uionths. 


2  'J 


326 


British  Columbia. 


[Part  11 


If  they  neglect  their  duty,  the  devisees  have  a  legal  remedy, 
but  the  Court  does  not  control  them. 

By  a  Provincial  Statute,  lands  of  an  intestate  descend  to 
the  ti&me  persons  who  would  be  next  of  kin  of  personal  estate, 
but  in  such  a  case  the  widow  is  only  entitled  to  dower,  which 
is  a  life  interest  in  one-third. 

A  teststor  may  devise  land  as  he  pleases  by  his  will. 
Neither  the  widow  or  chiklren  are  entitled  by  law  to  any 
interest. 

Wills  of  foreigners  which  have  been  duly  proved  in  any 
foreign  Court  are  admitted  to  probate  on  production  of  a  duly 
certified  record  of  the  proceedings. 


li:^ 


CHAPTER   X. 

HOMESTEADS. 

Land  to  the  value  of  twenty-five  hundred  dollars  may  be 
made  a  homestead,  if  duly  registered  as  such,  at  a  time  when 
the  owner  was  free  from  debt,  and  everyone  is  entitled  to  claim 
8500  or  chattels  to  this  value  against  any  e.xecution  creditor, 
in  addition  to  the  homestead  on  land. 


U  \i 


CHAPTER  XI. 

DEPOSITIONS. 

For  matters  in  civil  suits,  evidence  abroad  is  generally 
taken  by  Commissioners  appointed  by  a  Judge  ot  the  Supreme 
Court.  In  other  matters  affidavits  can  be  taken  before  any 
Minister,  Iilndias.iailor,  Consul,  V'^ice-Consul,  or  Consular  Agent, 
and  if  there  is  no  one  representing  these  functionaries,  tlien  be- 
fore a  Notary  Public  duly  certified  to  be  such  by  the  Governor 
or  Secretary  of  State. 


Chap.  12] 


British  Columbia. 


327 


CHAPTER  XII. 

JUDICIAL  RECORDS— ACKNOWLEDGMENTS. 

Jiulicial  records  ot"  foreign  .States  can  be  proved  by  ex- 
amined copies  sealed  with  the  seal  of  the  State  if  relating  to 
State  documents,  or  the  seal  of  the  Court  if  relating  to  judicial 
records. 

Acknowledgments  of  deeds  can  be  taken  l)ofore  a  Notaiy 
Public,  duly  certified  to  be  such  by  the  British  Consul,  or  be- 
fore Commissioners  appointed  by  the  Lieutenant-Governor. 


CHAPTER  XIII. 

LIMITED  PARTNERSHIPS,   ETC. 

Joint-stock  companies  can  limit  the  liability  of  their  share- 
holders to  the  amount  subscribed  for  by  each,  by  registering 
under  the  statute. 

The  law  of  privpte  partnerships  now  allows  a  person  to 
invest  money  in  a  business  concern  and  receive  a  share  of  the 
profits,  without  l)eing  lialile  as  a  partner. 

Companies  for  all  purposes  can  be  formed  and  registered 
in  a  simple  and  inexpensive  maimer. 

Foreign  companies,  /.  e.,  companies  incorporated  in  a  foreign 
country,  can  register  in  this  Province  upon  the  assent  of  three- 
fourths  of  the  shareholders  being  obtained,  and  can  carry  on 
business  the  same  as  any  local  company,  but  their  office  must 
be  in  Victoria,  and  the  liability  of  the  shareholders  is  not  lim- 
ited to  the  amount  of  their  .shai'es. 


CHAPTER  XIV. 

MARRIED  WOMEN. 

Can   invewt  the  monej'  earned   by  any  separate  trade  or 
occupation,  and  the  same  is  free  from  the  debts,  control  or  en- 


328 


British  Columbia. 


Ui' 


[Part  11 


gagements  of  the  husband;  and  landed  property,  held  before 
marriage  or  acquired  subsequent  thereto,  can  be  dealt  with  by 
a  married  woman  as  if  she  were  femmr  sole.  She  can  trade 
and  contract  in  her  own  right,  and  is  personally  liable  on  hei 
own  contracts. 


CHAPTER   XV. 

MORTGAGES. 

Chattel  mortgages  must  be  registered  within  twenty-one 
days  after  execution,  and  an  affidavit  filed  of  the  day  and  date 
of  execution,  in  order  to  protect  the  property  frojn  execution 
cretlitors  of  the  grrantor.  A  mortgage  unrej^istered  is  <rood  be- 
tween  the  parties,  and  if  the  mortgagee  take  the  property  into 
his  own  custody  an  execution  creditor  cannot  seize  it.  Furni- 
ture, goods,  merchandise,  etc.,  can  be  mortgaged.  Farming 
stock  and  crops  are  not  subject  to  the  Act. 


©"o^ 


Mortgages  of  Land. 

A  mortgagee  of  land  is  a  specialty  creditor;  he  can  sue  l)is 
debtor  for  the  amount  dui',  soil  the  mortgage  property,  or  fore- 
close the  mortgage.  A  mortgage  is  good  for  twenty  years, 
Init  it  nmst  be  registered  in  order  to  give  it  priority  over  otlier 
charges,  as  priority  of  registration  gives  priority  of  charge. 


H. 


CHAPTER  XVI. 

INTEREST  AND  USURY. 

The  legal  rate  of  interest  is  six  per  cent,  per  anninn.  All 
judgnients  carry  this  rate;  so  do  accomits,  after  notiv..'  that 
interest  will  be  charged;  l)ut  any  higher  rate  of  interest  is  per- 
fectly legal,  as  there  are  no  u.sury  laws  in  force. 


Chap.  17] 


British  Columbia. 


329 


CHAPTER  XVII. 

LAND  LAWS,  ALSO  LIENS. 

Persons  can  ac(juire  land  (three  hundred  and  twenty  acres) 
liy  pre-emption,  on  making  hripr()vemeiu->  to  the  value  of  32.50 
an  acre,  and  residing  on  the  land;  and  on  a  survey  being  made, 
a  grant  in  fee  .simple  is  issued  without  charge,  or  can  purcha.9e 
in  surveyed  districts  at  !?1  an  acre. 

Aliens. 

Foreign  citizens  can  be  naturalized  after  three  years'  resi- 
dence and  taking  the  oath  of  allegiance. 

Aliens  have  full  power  to  take  up  land  without  the  neces- 
sity of  taking  the  oath  of  allegiance,  but  they  must  declare 
their  intention  of  becoming  a  British  subject.  They  have  all 
the  same  privileges  as  natural-born  persons  except  the  right  of 
voting  for  the  Legislature,  and  holding  municipal  offices. 

Any  one  can  buy  lands  at  !?2.r)0  per  acre. 

In  the  case  of  timber  lands,  any  one  can  acquire  a  timber 
license  at  the  rate  of  8-)0  a  year  for  1000  acres,  or  can  pur- 
chase timber  lands  at  !?2.50  per  acre,  paying  ')0c.  per  M  for  all 
timber  cut. 


Lien. 


Every  person  furnishing  materials  or  doing  work  for  an- 
other is  entitled  to  a  lien  on  the  building  or  erection,  and  on 
the  land  on  which  such  building  or  work  has  been  performed. 
Such  lien  has  to  be  registered  within  thirty  days,  and  no  paj"- 
mt'nt  made  to  a  contractor  within  thirty  days  of  the  comple- 
tion of  the  work  shall  \»:  valid  against  the  lien  holder.  There 
are  (jther  provisions  for  the  protection  of  the  workman  and 
supplier  of  materials  which  give  an  ample  protection  again.st 
dishonest  contractors. 


330 


British  Columbia. 


[Part  11 


' 


CHAPTER  XVm. 
MUNICIPALITY  LAWS. 

Commercial  travelers  have  to  pay  a  license  of  $10  for  every 
six  months.  All  other  businesses  pay  a  license  varying  from 
So  to  8100  a  year. 

The  municipalities  have  only  a  limited  power  of  taxation; 
in  other  respects  they  have  complete  self  government. 


CHAPTER  XIX. 

SHIPS  AND  SHIPPING. 

Foreign  vessels  sold  to  a  British  subject  can  be  registered 
in  the  Dominion,  subject  to  a  tariff  of  ten  per  cent. 
The  navigation  laws  are  those  of  Great  Britain. 


CHAPTER  XX. 

INSOLVENCY. 

At  the  present  time  there  are  no  bankruptcy  or  insolvent 
laws  in  tlio  Dominion  of  Canada,  but  the  local  Legislature  have 
passed  acts  intended  to  assist  creditors  by  rendering  void  all 
judgments  by  confession  or  assignments  of  chattels  given  by  a 
debtor  in  insolvent  circumstances. 


Chap.  21] 


British  Columbia. 


381 


CHAPTER  XXI. 

MINES,  ETC. 


Free  miners  have  to  pay  a  license  fee  of  So  a  year. 

A  free  miner  is  entitled  to  100  feet  sc^uare  of  dry  diggings 
or  bench  claims  wherever  found;  1.500  feet  by  GOO  feet  for 
mineral  claims.     All  claims  have  to  be  recorded. 

Disputes  are  decided  on  the  ground  by  the  Gold  Commis- 
sioners, with  or  without  a  jury  of  live. 

Crown  grants  are  issued  for  mineral  claims  upon  fulfilling 
certain  simple  requisitions. 


>;ij 


Goal  Mines. 


Coal  land  can  be  bought  at  the  same  price  as  ordinary 
Crown  lands,  and  a  royalty  of  five  cents  per  ton  on  all  coals 
raised. 


■' 


•^:i| 


■:  il 


PART  XII. 


Colorado. 


Prepared  Expressly  for  this  Work  by  R.  D.  Thompson, 
Denver,  Colorado. 


JURISDICTION  OF  COURTS. 

Justice  Courts,  up  to  S300;  County  Courts,  up  to  82000; 
District  Courts,  unlimited  as  to  amount  involved. 

TIME  TO  ANSWER. 

In  Di.strict  and  County  Court  suits  the  defendant  has 
twenty  days  to  answer,  where  summons  is  served  in  the  county 
where  suit  is  brought:  if  served  out  of  the  county  thirty  days. 
If  copy  of  complaint  bo  not  served  with  the  sunnuons,  ten  day,s 
additional  time  allowed  for  appearance. 

In  Justices'  Courts  not  less  than  five  nor  more  than  fifteen 
days  after  date  of  summons. 

ATTACHMENTS. 

An  attachment  may  be  had  where  it  is  shown  by  affidavit 
that  debtor  is  a  non-resident;  or  a  foreign  corporation;  or  a 
corporation  whose  chief  office  or  place  of  business  is  out  of  the 
State;  or  that  debtor  conceals  himself  or  stands  in  defiance  of 
an  officer  so  that  process  cannot  be  .served  on  him;  or  that 
debtor  has  been  more  than  four  months  absent  from  the  State, 
or  that  for  such  length  of  time  his  whereabouts  has  been  un- 
known, and  that  the  indebtedness  has  been  due  during  all  said 
period;  or  that  debtor  is  about  to  remove  his  property,  or  a 
material  part  thereof,  out  of  this  State  with  intent  to  defraud. 


i   *s 


1+' 


884 


Colorado. 


[Part  12 


ik. 


hinder,  or  delay  his  creditors;  or  that  debtor  Ims  or  is  about  to 
fraudulently  convey,  transfer  or  assign  his  property  or  eftects 
so  as  to  hinder  or  delay  his  creditors;  or  that  debtor  has  or  is 
about  fraudulently  to  conceal  or  remove,  or  dispose  of  liis  pro- 
perty so  as  to  hinder  or  delay  his  creditors;  or  that  debtor  has 
departed  or  is  about  to  depart  from  the  State  with  the  inten- 
tion of  having  his  effects  removed  from  this  State;  or  that 
debtor  has  failed  or  refused  to  pay  the  price  or  value  of  any 
article  delivered  to  him,  which  he  should  have  paid  for  upon 
the  delivery  thereof;  or  that  debtor  has  failed  or  refused  to 
pay  the  price  or  value  of  any  work  or  labor  done  or  performed; 
or  for  any  services  rendered  by  plaintiff  at  the  instance  of  th(; 
<lebtor,  and  which  should  have  been  paid  at  the  completion  of 
such  work,  or  when  such  services  were  fully  rendered;  or  that 
debtor  fraudulently  contracted  the  debt  or  fraudulently  in- 
curred the  liability,  respecting  which  the  suit  is  brought,  or  by 
false  representations  or  false  pretenses,  or  by  any  fraudulent 
conduct  procured  money  or  property  of  the  plaintiff;  or  that 
the  action  is  brought  upon  an  overdde  promissory  note,  bill 
of  exchange,  or  other  instrument  for  the  direct  and  uncondi- 
tional payment  of  monej',  or  upon  an  overdue  book  account. 

The  creditor  must  give  a  bond  in  double  the  amount  of  the 
attachment. 

LIMITATION  OP  ACTIONS. 

On  promissory  notes,  book  accounts  and  judgments,  six 
A'ears. 

HOMESTEADS. 

Allowed  to  head  of  family  in  an  amount  not  exceeding  in 
value  $2000. 


INTEREST. 

The  legal  rate  is  eight  per  cent,  per  annum;  a  higher  rate 
may  be  contracted  for,  but  to  be  binding  must  be  in  writing. 


Colorado. 


335 


ESTATES  OF  DECEASED  PERSONS. 

Claims  must  bo  presented  to  the  Court  within  one  year 
from  the  granting'  of  letters  of  administration,  and  vvlien  veri- 
fied out  of  Colorado  may  be  sworn  to  before  a  Clerk  of  any 
Court  of  record,  Notary  Public,  or  before  a  Commis.sioncr  for 
Colorado;  or  before  any  officer  of  any  State,  Territory  or  Dis- 
trict of  the  United  States  havin<f  like  authority  (as  the 
officers  of  this  State)  by  the  law  of  the  State,  Territory  or  Dis- 
trict where  he  resides. 

BELLS  OP  EXCHANGE,  ETC. 

Three  days  of  grace  are  allowed,  except  on  sight  drafts 
Notes,  etc.,  maturing  on  Sunday  or  a  legal  holiday,  will  be 
payable  on  the  day  previous. 

ACKNOWLEDGMENTS. 

Out  of  the  State  but  within  the  Unitod  States,  may  be 
taken  before  the  Secretary  of  State,  under  seal  of  the  State, 
before  a  Clerk  of  a  Court  of  record,  under  seal  of  ( 'ourt,  before 
any  Notarj'  Public,  he  certifying  under  his  official  seal,  before 
any  counnissioner  of  deeds,  under  his  seal,  before  any  other 
officer  authorized  by  the  laws  of  sueli  State  or  Territory  to 
take  such  acknowledgment,  provided  there  be  affixed  to  the 
certificate  of  such  officer  a  certificate  by  the  Clerk  of  some 
Court  of  record  of  the  county,  city  or  district  wherein  such 
officer  resides,  under  the  seal  of  such  Court,  that  the  person 
certifying  such  acknowledgment  is  the  officer  he  assumes  to 
be;  that  he  has  authority  by  the  laws  of  such  State  or  Terri- 
tory to  take  and  certify  such  acknowledgment,  and  that  the 
siirnature  of  such  officer  to  the  certificate  is  the  true  si<:fnature 
of  such  officer. 


INSOLVENCY  LAWS. 

There  is  no   insolvencj'  law  in   this   State, 
assignments  are  not  permitted. 


Preferential 


5 


11 


PART  XIII. 


1 


New  Mexico. 


Prepared  Expressly  for  this  Work  by  A.  A.  Jones, 
Las  Vegas,  N.  M. 


JURISDICTION  OF  COURTS. 

Justice  Courts  liavo  jurisdiction  of  civil  cases  up  to  $100; 
Itut  not  wliere  title  to  land  is  brou<i;ht  in  (|ue.stion. 

District  Courts  have  coninion  law  and  chancerj-  jurisdiction. 
Probate  Courts  ha\'e  jurisdiction  of  probate  matters. 

SERVICE  OF  PROCESS. 

If  the  defendant  resi  les  in  the  county  where  suit  is  brought 
he  nui.st  lie  served  with  process  at  least  Hve  days  before  the 
first  day  of  the  term  of  Court,  if  he  resides  out  of  the  county, 
but  .in  the  judicial  district,  fifteen  days;  if  out  of  th'.'  judicial 
di'^trict,  thirty  dav.s. 


ATTACHMENTS. 

The  following-  are  grounds  for  an  attachment,  which  must 
b<>  shown  by  affidavit: 

When  debtor  is  a  non-resident  of  the  Ten-itory;  when 
debtor  has  concot  led  himself,  or  absconde<l  or  absented  him- 
self from  his  usual  place  of  abode  so  Uiat  ordinar}'  process  of 


i 


litis 


Nkw  Mkxum. 


[Part  i:^ 


law  ciiiiiiMt  l»e  .NfiNctl  upon  him;  wIil-ii  ik-lttor  is  uliout  tn  rc- 
iiiDVc  his  property  out  of  thi;  Territory,  or  t'raiKhtleiitly  cdii- 
cettls  or  flisposi's  ol"  his  propoitv:  wlicii  the  lU'ht  is  contracted 
out  of  the  Territory,  ami  property  is  secretly  moved  into  the 
Territory:  when  defendant  is  a  corporation  wlio-e  office  is  out 
of  th(!  Territor}-,  and  there  is  no  a,L,'ent  ii;  the  Territoiy  upon 
whom  to  serve  process;  when  deht  was  fraudulent) v  contractid 
or  credit  obtained  liy  false  pretenses. 

Bonds  are  re([uired   in  a  sum  doulile  the  amount  sworn  to 
in  affidavit. 


f 


"J 


ARREST  AND  IMPRISONMENT  FOR  DEBT. 

The  ilehtor  nuiy  l>e  arrested  in  a  civil  action,  where  he  i.s 
about  to  leave  the  Territ</r3'  to  defraud  his  creditors. 

Bonds  are  retpiired  of  the  creditor,  the  same  as  in  attach- 
ment. 

LIMTTATION  OP  ACTIONS. 

Contiacts  in  writinjj,  six  years.  .Ju<i;^'ments  of  Courts  not 
of  nscord,  six  years.  .Ttidgments  <  f  Courts  of  record,  fifteen 
years.     Unwritten  contracts,  four  years. 

Actions  of  replevin  must  be  broujjht  within  one  year  from 
the  time  the  cause  of  action  accrutid. 


HOMESTEADS. 


m[ 


A  homestead  to  the  valuta  of  one  thousand  dollars  is  exempt 
froMi  (execution,  if  dijbtor  is  the  head  of  a  fandlv. 


I 


INTEREST. 

The  ii'^al  rate  of  interest  is  six  per  cunt,  per  annum,  liut 
not  more  than  twelve  per  cent,  can  be  recovered;  and  judg- 
ments bear  interest  at  tlu;  rate  of  the  oriifinal  obli;^ation,  not 
to  t'Xc I  twelve  per  cent. 


« 


Nr.w  Mkxh'o. 


330 


EXEMPTIONS. 

Every  person  who  liits  a  rainily.  uml  I'vciy  witlow,  iiuiy 
Ix  111  c.vompt  from  cxccntion,  uttucluiunt  or  saif,  ('crtaiii  Itonso- 
lioltl  fni'iiituro  and  etiVcts  wliich  are  t-nuiuerjitoil  in  tln'  statutes; 
and  any  resultMit  of  the  Territory  w'  "  i^  the  liend  <>\'  a  family, 
ami  not  the  owner  of  a  homesteail.  m.i ,  hold  exempt  frmn  1«'\  y 
and  sale,  real  or  personal  pi-operty  to  lie  selected  by  such  per- 
son, his  a'^ent  or  attorney,  at  any  timr  iN-fon-  sale,  not  cKfei-d- 
ini;  five  hundreil  dollars  in  value,  in  adilition  to  the  amuuttt  of 
t'liattel  property  othervise  V»y  law  exempted. 


ESTATES  OP  DECEASED  PERSONS 

A  year  is  allowed  to  .-:ettle  estates. 

Claims  against  estates  of  deceased  persons  unist  he  presented 
within  one  year  from  date  of  death  of  dccoaseil,  and  suits  inu.st 
b(?  hrouf^ht  within  IM  months. 


BILLS  OP  EXCHANGE,  Etc. 

No  days  of  grace  allowed;  if  they  mature  on  !*>ujjday  or 
legal  holiday,  the  following  busines;.  day  will  be  the  day  pay- 
able. 


ACKNOWLEDGMENTS. 


If  taken  within  the  Territor,-,  before  a  .ludge  or  Clerk  of  a 
('o  irt  of  record  having  a  .seal,  or  before  a  Justice  of  the  Peace, 
cv  .<Iotary  Public.  If  taken  without  the  Territory  and  within 
t!he  United  States,  before  a  Commissioner  of  JX'eds  fur  New 
Mexico,  or  'oefore  a  Judge  or  Clt;rl\  of  a  Court  of  ri?cord .  and 
if  tak«':-  before  a  Judge,  the  Clerk  nuist.  under  his  signatiirt? 
and  seal  of  C'ourt,  certify  that  lu>  is  Ju<lge  of  such  Coiirt,  or 
before  a  Notary  Public  havin-j  an  otHcial  seal. 


Illp 


I'm: 


5ftl 


^J 


;i4o 


New  Mkxico. 
ASSIGNMENT  LAWS. 


[Part  13 


Any  pfi'son  may  u.ssi<;ii  liis  prupi'ity,  hutli  real  ami  persoiml. 
•  xct-jit  what  is  \>\  law  cxi-iiipt  from  salo  under  execution,  to 
any  i»urs(»n  in  trust  for  the  henetit  of  his  creditors,  hut  such 
assi<,'nment  shall  lu-  for  tin-  henetit  of  all  the  creditors  of  the 
assij^nor:  and  every  such  assijjfnmi.'Ut  shall  he  proved,  or  ac- 
knowh'ilrjcd  and  eertitie(l  and  ivcorded  in  the  same  manner  as 
is  preserihcd  \>y  law  in  eases  wherein  real  estate  is  conveyed. 
The  assij^'uee  shall  i.d\e  a  hond  to  be  approved  l»y  the  .Fudge;  of 
the  District  Court.  >«id  said  Jud<fe  may  remove  an  a.ssi},'nee  for 
cau.se.  All  acts  done  or  settlenu-nts  made  by  the  assitiuee  .shall 
bi-  repoi'ted  to  the  District  Judt,'e  for  his  approval.  Every 
.sale,  mortj^ajLte,  oi-  assiijinnent  made  by  del>toi"s,  and  every 
judj^'Micnt  suffered  by  any  detendant,  or  any  act  or  ilevice  done 
oi-  roorted  to  by  a  debttir  in  contfuiplation  of  insolvency, 
and  with  the  (lesit;n  to  prefer  one  or  more  creditors,  shall  oper- 
ate as  an  assi;^nment  and  transfer  of  all  the  property  and  effects 
of  such  debtor,  and  shall  inure  to  the  l)enetit  of  all  his  cred- 
itors in  pi'oportion  to  the  amount  of  their  respi-etive  denumds. 
All  such  transfers  sliall  be  subjfet  to  tin-  control  of  (-ourts  of 
e<|uity  upon  the  bill  of  any  person  interested,  lilcd  within  six 
months  after  the  mortgage  or  transfer  is  legally  lodged  for 
record,  or    the  delivery  of  the  property  or  ettects  tran.sferred. 


PART  XIV. 


Texas. 


Prepared  Expressly  for  this  Work  by  Shook  &  VanderHoeven, 

San  Antonio,  Texas. 


JURISDICTION  OF  COURTS. 

Jiistict's"  Courts,  up  to  :*200. 

J)istrict  Courts  above  !?20(),  unliiniti'd. 

Cyounty  Courts  liavi;  jurisd'ctioii  of  proltate  nuittors,  etc., 
anil  in  sonio  counties  have  orij.,anal  civil  jurisdiction  up  to  >*.')<)(), 
and  concurrent  jurisdiction  with  J^istrict  Court  up  to  $1  ()()(). 


TIME  TO  ANSWER. 

Defendant,  after  .service  on  him  of  sunnaons,  niu.st  answer. 
Time  to  answer  is  five  days  after  the  return  day  of  the  Cojut, 
called  appearance  day. 

ATTACHMENTS. 

May  is,sue  when  sliown  hy  aHitiavit  that  debtor  is  not  a 
resident  of  the  State,  or  is  a  forei|^n  corporation;  when  he  is 
about  to  remove  pernuvnently  out  of  the  State,  anil  has  refusi-d 
to  pay  or  secure  the  debt;  when  he  secretes  himself,  so  that  the 
ordinary  proce.ss  of  law  cannot  be  s»>rved  upon  him;  wln'ii  the 
debtor  has  secreted  his  pn)p«'rty  for  the  purpose  of  ilefraiidinjf 
his  creditors;  when  he  is  ai»tut  to  secret.^  his  propi-rty  for  the 
purpose  of  defraudintj  his  creditors;  when  he  is  ab(»ut  to  re- 
move his  property  out  of  the  .State  without  leavin;^  sutficient 


342 


Texas. 


[Part  14 


roiiiaiiiin<j;  I'ur  the  payment  of  his  dehts;  where  he  is  about  to 
I'eiiiove  his  property  or  a  part  thereof  out  of  the  county  where 
the  suit  is  brought,  with  intent  to  defraud  his  creditors;  when 
he  has  disposed  of  his  propert}-,  in  whole  or  in  part,  with  in- 
tent to  defraud  his  creditors;  when  he  is  about  to  dispose  of  his 
i»roperty  with  intent  to  defraud  his  credilors;  wlien  he  is  about 
to  convert  his  propi;rty  or  a  part  thereof  into  money,  for  the 
])urposf  of  placin*,'  it  beyond  the  reach  of  his  creditors;  wlien 
the  debt  is  (hie  for  ])roperty  obtained  under  false  pretenses. 
The  aHidavit  must  furtlier  show  tliat  the  defendant  is  justly 
indebted  to  the  plaintiff  and  the  amount  of  the  demand;  that 
the  attachment  is  not  sued  out  for  the  purpose  of  injuring  or 
harassing  the  defendant;  and  that  the  plaintiff  will  probably 
lose  his  debt  unless  such  attachment  is  issued.  A  bond  is  re- 
quired on  behalf  of  the  creditor  in  double  the  amount  of  the 

debt. 

ARREST  AND  IMPRISONMENT  FOR  DEBT. 
Not  allowed. 


i! 


LIMITATION  OF  ACTIONS. 

Written  insti-uments,  four  years;  accounts,  two  years. 
Judgments  obtained  in  this  State,  ten  jears;  foreign  j(i<lg- 
ments,  ten  years. 

HOMESTEADS. 

A  homestead  in  the  city  to  the  value  of  !?.')0()(),  exclusive  of 
improvements,  or  200  acres  in  the  country,  is  exempt  from  e.\- 
t ention. 

Homesteads  cannot  be  mortgaged  or  subjected  t(»  any  lien 
except  mechanics'  for  building  thereof,  or  materials  furni.sbeil 
thert'for,  or  for  vendor's  lien. 


lli: 


INTEREST. 

The  legal  rate  is  eight  per  cent,  per  annum,  but  a  rate  not 

t4>  exceed  'welve  ju'r  cent,  per  anuum   niav  b-  agn-.il   upon. 
U  !»'y  forfeits  nil  interest. 


Texas. 


lUt] 


ESTATES  OF  DECEASED  PERSONS. 

Cluiiiis  against  (jstaU's  to  be  j)r('sente(l  within  twclvi' 
months  from  planting  oi  letters;  and  if  verified  out  of  tins 
State,  to  lie  sworn  to  hefore  a  Commissioner  for  tliis  State,  or 
before  a  Notary  PuMie.  or  he'ore  a  Jiidire  or  a  ('lerk  of  a 
Court  of  reeoni. 

Letters  of  administration  must  be  "ranted  within  four 
years  after  dcatli,  and  not  after. 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 

Three  days  of  grace  arc  aUowed. 

ACKNOWLDGEMENTS. 

Taken  in  this  State  may  be  taken  before: 
Firnl. — A  Clerk  of  the  District  Court. 

ScrtHiil.  ~\  Judge  or  Clerk  of  the  CJounty  Court,  or  Justice 
of  the  Peace. 

Thini.—A  Notary  Public. 

Taken  out  of  the  State,  but  within  tlie  Unite<l  States,  may 
be  taki'U   befor*.': 

Firsf. — A  Clerk  of  some  Court  of  recoi\i,  having  a  seal. 

Sirniiil.  -A  Commission!  r  of  T~)ee(ls.  duly  a]ipointe(|  mid'ir 
the  laws  of  this  State. 

77//»n/.— A  Notary  Public. 

Taken  without  the  Cnited  States:  I )e fore  a  Minister,  Co\u- 
uii's'unwi.  i)Y  C/iii iy>  il'A /i<il ri'n  of  the  United  Stati's.  resident 
and  accre<lit<'d  in  the  countiy  where  the  proof  or  ackimwhidg- 
m«  lit  i>  taken:  a  Cons»d-(J.tieral,  Consul,  Vice-Con.sul,  Com- 
mercial Agent.  N'ice-CoMunercial  Agent,  Deputy  Consul  orC'(»n- 
>ulnr  Agent  of  the  I'nited  States,  resident  in  the  country 
will  re  the  proof  or  acknowledtimiut  is  made. 

The  otHecr  IteVore  whom  an  acknowledgiueut  is  taken  must 
certify  tlmt  tht>  party  "is  known  to  liim.' 


i4 


344  Tkxas.  [Part  14 

INSOLVENT  AND  ASSIGNMENT  LAWS. 

There  is  no  insolvent  law  in  this  State,  Init  tliere  is  an 
assiginneiit  hiw  for  henefit  of  creditors. 

A  creilitor  may  or  may  not  accept  under  tlie  assij^niiiicnt. 
ii' he  accepts  lie  uivi-s  his  consent  in  writinjj;  to  the  assignee 
witliin  fonr  months  after  notice  of  tlie  assignment  is  pub- 
lished, and  within  six  months  after  such  notice  is  pul)lished, 
must  tih  his  chiim  duly  verified  hy  affidavit.  If  the  assignee 
pays  to  an  accepting  creditor  as  much  as  :{:{.',  per  cent,  of  the 
claim  it  t»perates  as  a  full  release  thereof,  liut  any  less  amount 
is  only  a  credit  on  the  claim. 

The  creditor  who  refuses  to  consent  to  (he  assignment  re- 
ceives none  of  the  assigned  estate;  hut  his  remedy  at  law 
against  the  assignor  is  unimpaired. 


PART  XV. 


State  of  Washington. 


Prepared  Expressly  for  this  Work  by  Peterson  &  Pennefather 

Seattle. 


Article  XVII,  section  2,  of  the  Constitution  of  thr  State  of 
Wasltinfjton,  provides:  "AH  laws  now  in  force  in  the  IVrritorv 
of  Washington,  which  are  not  repugnant  to  this  Constitution, 
shall  remain  in  force  until  the)'  expire  by  their  own  limitation, 
or  are  altered  or  repealed  by  the  Legislature;  prorldeil,  that 
thi.s  .section  shall  not  be  so  construed  as  to  validate  any  act 
of  the  Legislature  of  Washington  Territorv.  granting  shore  or 
title  lands  to  any  person,  company,  or  any  municipal  or  private 
corporation." 

CHAPTER  I. 
COURTS  AND  THEIR  JURISDICTION. 

Umler  the  Constitution  of  Washington,  the  Judicial  power 
of  the  State  is  vested  in  a  Supreme  Court,  Supei'ior  Courts, 
.Just'ces  of  the  Peace,  and  such  inferior  ('ourts  as  the  Legisjatuii' 
may  provide. 

Tlie  Supreme  Court  is  an  appellate  Court,  but  has  original 
juri.sdiction  in  habeas  corpus,  and  (]Uo  warranto  and  mandamus, 
as  to  all  State  orticers.  It  has  appellate  jurisdiction  in  all  actions 
an»i  proceedings,  excepting  that  its  appellatt'  jurisdiction  shall 
not     ;tend  to  civil  actions  at  law  for  tlie  recovery  of  money  or 


'(  M 


84() 


Washinoton. 


[Part  !") 


personal  property,  when  the  original  amount  in  controversy 
iloe.s  not  exceed  the  suiu  of  $200,  unless  the  action  involves  the 
legality  of  a  tax,  impost,  assessment,  toll,  municipal  tine,  or  the 
validity  of  a  statute.     (Constitution,  Art.  IV,  Sec.  4.) 

The  Superior  Court  has  original  jurisdiction  in  all  cases  in 
eipiity  and  in  all  ca.ses  at  law  which  involve  the  title  or 
pcssession  of  real  property,  or  the  legality  of  any  tax,  impost, 
a-ssessment,  toll  or  municipal  fine,  anu  in  all  other  cases  in  which 
the  demand  or  the  value  of  the  property  in  controversy  amounts 
to  one  hundred  dollars,  and  in  all  criminal  cases  amounting  to 
felony,  of  actions  of  forcible  entry  and  detainei",  of  proceedings 
in  insolvency,  and  ef  matters  of  probate  and  divorce.  (Const. 
Art.  IV,  Sec.  G.) 

There  is  a  Probate  Court  in  each  county,  holding  six  terms 
i-ach  per  annum,  having  statutory  /.irisdiction  in  all  matters 
pertaining  to  decedents'  estates,  and  the  guardianship  and 
•estates  of  minors  and  insane  persons.  They  have  n(»  common 
law  jurisdiction  exe(?pt  .such  as  is  .strictly  neces.sary  to  carry 
out  and  enforce  that  defined  by  statute.  The  constitution 
provides  that  the  Probati;  Court  shall  be  merged  into  the 
Superior  Court  after  the  si-eond  Motiday  in  .January,  18!>I. 

Justices  of  the  Peace:  the  Legislature  shall  prescribe  by 
law  the  powers,  duties  and  jm'isdietion  of  Justices  of  the  Peace; 
l)Ut  such  jurisdiction  granted  by  the  Legislatun;  shall  Jiot  trench 
upon  tin.'  jurisdiction  of  Superi(»r  or  other  Courts  of  record^ 
(Const.  Art.  IV,  See.  10.) 

.Insticesof  the  Peace  have  juri.sdietion  co-extensive  with  the 
limits  of  their  respective  counties,  over  all  causes  arising  on 
contract  for  the  recovery  of  money  oidy.  when  the  sum  claimed 
does  not  exceed  one  hundred  dollars,  ami  in  actions  for  damages 
for  injury  to  per.scni  or  pioperty,  or  for  taking  or  detaining  or 
injuring  personal  projierty,  if  the  damages  claimed  do  not 
exci'ed  one  hundred  dollars;  also  in  actions  to  recovei-  the 
possession  of  personal  property  where  the  value  does  not  Jimoimt 
to  one  hundred  dollars;  also  in  actions  on  undertakings  or 
bonds,  when  the  penalty  or  amoiuit  claimed  <loes  not  exceed 
one  hundred  dollars;  also  in  actions  for  damages  for  fraud  and 


C'l.Hi).  2 J 


\Vashin(jton. 


347 


fk'ci'it  in  tho  sale,  purchase  or  exchange  of  personal  propcM-ty, 
when  tlic  <huiiHgi's  chiiiiied  do  not  exceed  one  hundred  <l(»llars; 
also  in  actions  to  try  the  right  of  possession  to  mining  chiinis. 


CHAPTER  II. 

TERMS  OF  COURTS— WHEN  AND  WHERE  HELD. 

'J'he  Supreme  Oourt  shall  hold  regular  sessions  for  the 
hearing  of  causes  on  the  second  Monday  in  Januar}',  May  an<l 
October,  at  the  seat  of  government  at  Olympia 

The  Superior  ('ourt  shall  always  be  open  except  on 
non-judicial  days.  Each  of  the  organized  '-ounties  of  the  State 
shall  have  a  Sup('rior  Court:  but  until  otherwise  directed  ont- 
dudgf  oidy  shall  be  elected  for  the  counties  of  Spokane  and 
Stevens:  one  .Judge  for  the  county  of  Whitman:  one  .Judge  for 
the  counties  of  iiineoln,  Okonagon,  Douglas  and  Adams;  one 
for  the  counties  of  VVaila  Walla  and  Franklin;  one  for  tlie 
counties  of  Columbia,  (Jarfield  and  Asotin;  one  for  the  counties 
of  Kittitass,  Yakima  and  Klickitat;  one  for  the  counties  of 
Clarke,  Skamania,  Pacific,  Cowlitz  and  Wahkiakmii;  one  for 
the  counties  of  Thurston,  CJlielmlis,  Mason  and  licwis;  one  for 
the  county  of  l^ierce:  one  for  the  county  of  King;  one  for  the 
eountii's  of  .leHerson,  J,shmd,  Kitsap,  San  .Juan  and  Clallam: 
one  for  the  counties  of  Whatcom,  Skagit  and  Snohomish. 
(Ccmst.  Art.  IV,  Sec  .').) 

By  special  act  the  nundjcr  of  Superior  Court  .Judges  in 
King  County  is  increased  to  throe:  in  Pierce  to  two,  and  in 
Spokane  to  two. 

Terms  t)f  the  Probate  Courts  are  held  at  the  county  seat  of 
each  county,  on  the  fourth  Mondays  of  January,  March,  May. 
•July,  September  and  November  of  each  year. 

.Justices"  C/ourts  are  always  open  for  the  transaction  of 
business. 


I'M, 


'"-  t! 


UH 


VVashinwton. 


[Fart  1. 


CHAPTER  III. 

COMMENCEMENT  OF  SUITS -TIME  ALLOWED 

TO   ANSWER. 

There  shall  be  but  one  form  of  action  for  the  onforceiiient 
or  protection  of  private  rij,'hts,  and  the  redress  of  private  wron;,'s, 
called  a  civil  action.     (Code  IMHl,  Sec.  2.) 

Civil  actions  in  the  Superior  Courts  are  coninienced  l)y 
rilinj^  a  complaint  with  the  Clerk  and  the  issuing  a  summons 
thereon,  signed  by  the  Clerk  of  Court  ami  under  the  seal  of 
the  (yourfc.  The  defendant  is  required  to  answer  the  complaint 
as  follows:  If  served  within  the  coutity  where  the  action  is 
brought,  twenty  days;  if  served  in  any  other  county  of  the 
State,  forty  days. 

If  it  be  shown  by  affidavit  of  the  plaintiti'  or  his  attorney 
that  personal  service  cannot  be  had  by  reason  of  the  absence 
of  the  defendant,  the  summons,  with  a  brief  statement  of  the 
object  of  the  action,  may  be  served  by  publication  thereof  in 
some  weekly  newspaper,  printed  and  published  and  of  general 
circulation  in  the  county  in  which  the  Court  is  lielc' ;  or,  if 
there  be  none,  in  some  new.spaper  printed  and  published  in  tin; 
State;  such  summons  shall  be  published  not  less  than  once  a 
week  for  six  consecutive  weeks,  and  shall  re(|uire  the  defendant 
to  appear  and  answer  the  complaint  within  sixty  days  from 
the  first  publication  thereof.  (Chap.  XVI,  Sec.  1,  Laws 
1887-8.) 

A  copy  of  the  sununons  must  be  deposited  in  the  Post-office 
directed  to  defendant's  residence,  if  it  is  known.  (  Chap.  XVI 
Sec.  5,  Laws  1887-8.) 

Personal  service  out  of  the  State,  proven  by  the  affidavit  of 
the  person  making  the  same,  sworn  to  before  a  Notary  Public 
with  seal,  or  before  a  Clerk  of  a  Court  of  record,  .shall  be 
eijuivalent  to  service  by  publication,  and  defendant  shall  be 
recjuired  to  answer  within  sixty  days  from  date  of  such  service- 
(Chap.  XV,  Sec.  5,  Laws  18H7-8.) 

If  the  defendant  fails  to  appear  and  answer  according  to 
the  requirements  of  the  summons,  the  plaintiff'  is  entitled  to 


Chap.  4] 


WASIIINfiTON. 


:{4!t 


have  tliu  default  fntorecl  and  ju<l;,Mii('iit  for  the  amount 
spociticHl  in  tho  .suimnons,  or  for  the  relief  prayed  for  in  the 
coniphiint.  The  c(jniplaint  and  all  subHe(|Uent  ])roceedin<,'.s  in 
an  action,  except  a  demurrer,  must  1k'  veritied  l»y  the  party 
(his  aj^ent  or  attorney,  in  the  comity  where  the  action  is 
lirou;iht)  to  the  eHect  that  he  believes  it  to  bo  true.  All 
connnon-law  forms  of  pleadinj^s,  and  all  distinctions  between 
law  and  e(|uity  as  to  fonn,  are  alx)li.she(l,  and  the  code  system 
Hilopted. 

In  Probate  Court,  most  of  the  business  can  be  commenced. 
))relimina)v  orders  j^ranted,  and  writs  issued  by  the  Jud<,'e  in 
vncation.  Orders  or  decrees  for  the  sale  of  i-eal  estate,  the 
settlement  of  estates,  and  discharj^e  of  executors,  administrators 
or  <,'uardians,  and  final  orders  and  decrees  jfenerally,  mu.st  be 
heard  and  decided  in  term  time. 

Civil  actions  in  .Justices'  Courts  may  be  instituted  either 
by  the  voluntary  appearance  and  aj,'reement  of  the  parties,  by 
the  service  i  f  a  summons,  or  by  the  .service  upon  the  defendant 
of  a  true  copy  of  the  complaint  and  notice.  The  summons  or 
notice  .shall  specify  a  time  and  place  of  hearin<f  which  shall 
not  be  less  than  six  nor  more  than  twent}'  days  after  the  tilinj,' 
of  the  complaint,  and  must  be  .served  at  lea.st  Hve  days  before 
return  day.     (  Sec.  1712,  Code  1H«1.) 


CHAPTER  IV. 

PLACE  OP  TRIAL  OP  CIVIL  ACTIONS. 

Actions  for  the  recovery  of,  for  the  possession  of,  for  the 
partition  of,  for  the  foreclosure  of  a  njortgajre  on,  or  for  the 
determination  of  all  (jucstions  aff'ectinj;  the  title,  or  for  any 
injuries  to  real  property,  and  all  questions  involving  the  rights 
to  the  po.ssession  or  title  to  any  specific  article  of  personal 
property,  or  for  the  detention  or  injury  to  .such  personal 
property,  shall  be  brought  in  the  county  in  which  the  subject 
of  the  action  or  some  part  thereof  is  situated.  ( Sec.  47,  Code 
1881.) 


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Washington. 


[Part  15 


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Actions  for  a  penalty  or  forfeiture  imposed  by  statue,  or 
against  pi;blic  officers  or  person  specially  appointed  to  execute 
his  duties,  for  an  act  done  by  him  in  virtue  of  his  office,  shall 
be  tried  in  the  county  or  district  where  the  cause  of  action  or 
some  part  thereof  arose.     (Sec.  48,  Code  1881.) 

Actions  against  corporations  may  be  brought  in  an}'  county 
where  tlie  corporation  has  an  office  foi'  the  transaction  of 
businer^s,  or  any  pcr.son  resides  upon  whom  process  against  sudi 
corporation  may  bo  served.  In  all  other  cases  the  action  uuist 
be  tried  in  the  county  in  which  the  defendants  or  some  of  them 
reside  at  the  commencement  of  the  action,  or  where  they  may 
he  served  with  process. 


CHAPTER  V. 

LIMITATION  OF  ACTIONS. 

The  period  prescribed  for  the  limitation  of  actions  from  the 
time  the  cause  of  action  accrues,  is  as  follows: 

For  the  recovery  of  real  property,  or  the  pos.session  thereof, 
ten  years;  upon  a  judgment  or  decree  of  any  Court  of  the 
United  States,  or  of  any  State  or  Territory  within  the  United 
States,  or  upon  a  contract  in  writing  or  liability,  express  or 
implied,  arising  out  of  a  written  agreement,  or  for  the  rents 
and  profits,  or  use  and  occupation  of  real  estate,  six  years;  for 
waste  or  trespass  upon  real  property,  or  for  taking,  detaining 
or  injuring  personal  property,  including  an  action  fo)-  the  spe- 
cific recovery  thereof,  or  for  any  other  injury  to  the  person  or 
rights  of  another  not  hereinafter  enumerated;  upon  a  contract 
or  liability,  express  or  implied,  which  is  not  in  writing,  and 
does  not  arise  out  of  any  written  instrument:  for  relief  upon 
the  ground  of  fraud  (the  cause  of  action  in  such  case  not  to  be 
deemed  to  have  accrued  until  the  discovery  by  the  aggrieved 
party  of  the  facts  constituting  the  fraud)  against  a  Sheriffi, 
Coroner  or  ConstaV)le  upon  a  liability  incurred  l»y  tin;  doing  of 
an  act  in  his  official  capacity,  and  by  virtue  of  his  office,  or  by 
the  omission  of  an  official  duty,  including  the  non-payment  of 
money  collected  upon  execution ;  upon  a  statute  for  a  penalty 


Chap.  ()] 


Washington. 


35! 


oi'  forfeiture,  and  for  seduction  and  breach  of  marriage  con- 
tract, tlu'ee  years;  for  libel,  slander,  assault,  assault  and  bat- 
tery and  false  iuiprisoinnent,  actions  upon  a  statute  for  a  for- 
feiture or  penalty  to  the  State,  two  years;  against  a  Sheriff  oi- 
other  officer  for  the  escape  of  a  prisoner  arrested  or  imprisonoil 
on  civil  process,  one  year. 

An  action  by  an  heir,  legatee,  creditor  or  other  party  inter- 
ested against  an  executor  or  administrator  for  alleged  misfeas- 
ance, uialfeasance  or  mismanagement  of  the  estate,  within  one 
year  from  the  time  of  final  settlement  or  the  time  such  alleged 
misconduct  was  discovered. 

An  appeal  from  any  order  of  a  Board  of  County  Connnis- 
sioners;  or  upon  a  claim  rejected  by  said  Board;  and  upon 
claims  against  an  estate  rejected  by  an  executor  or  adminis- 
trator, within  three  months  after  the  rejection. 

When  the  cause  of  action  arises  in  another  State  or  Terri- 
tory, between  a  resident  of  that  State  or  Territory  and  of  this 
State,  the  foregoing  limitations  apply.  When  the  cause  of  ac- 
tion arises  in  another  State  or  Territory  between  non-residents 
of  this  State,  and  the  same  would  be  barred  there  by  the  lapse^ 
of  time,  it  will  be  barred  here.  An  action  shall  be  deemed 
connnenced  as  to  each  defendant  when  the  complaint  is  filed. 

Section  33,  Code,  provides:  An  action  for  relief  not  here- 
inbefore provided,  shall  be  commenced  within  two  years  after 
the  cause  of  action  shall  have  accrued. 


CHAPTER  VI. 

ATTACHMENTS  AND  GARNISHMENTS. 

The  plaintiff',  at  the  time  of  connnencing  an  action,  or  at 
any  time  thereafter,  and  before  judgment,  may  have  the  pro]> 
erty  of  the  defendant  attached  as  security  for  the  satisfaction 
of  such  judgment  as  he  may  recover;  but  before  such  writ  of 
attachment  shall  issue,  the  plaintiff  or  some  one  in  his  belialf 
shall  make  and  tile  an  affidavit  showing  that  the  defendant  is 


ill 


fr       1 
5 


352 


Washington. 


[Part  15 


indebted  to  the  plaintiff,  specifying  amount  of  indebtedness 
over  and  above  all  just  credits  and  off-sets;  and  tliat  the  attach- 
ment is  not  sought,  and  the  action  not  prosecuted,  to  hinder, 
delay  or  defraud  any  creditor  of  the  defendant;  and  either: 

1.  That  the  defendant  is  a  foreign  corporation;  or 

2.  .  That  the  defendant  is  not  a  resident  of  this  State;  or 

.S.  That  the  defendant  conceals  liimself  so  that  the  ordi- 
nary process  of  law  can  not  be  served  upon  him;  or 

4.  That  the  defendant  Iias  absconded  or  absented  himself 
from  his  usual  place  of  abode  in  this  State,  so  that  the  ordinary 
process  of  law  can  not  Ije  servetl  upon  him;  or 

5.  That  tlie  defendant  has  removed  or  is  about  to  remove 
any  of  his  property  from  this  State  with  intent  to  delay  or 
defraud  his  creditors:  or 

(i.  That  the  defendant  has  assigned,  secreted  or  disposed 
of,  or  is  about  to  assign,  secrete  or  dispose  of,  any  of  his  prop- 
erty with  intent  to  delay  or  defraud  his  creditors;  or 

7.  That  the  defendant  is  about  to  convert  his  property,  or 
a  part  thereof,  into  monej'  for  the  purpose  of  placing  it  beyond 
the  reach  of  his  creditors:  or 

<S.  That  the  defendant  has  been  guilty  of  a  fraud  in  con- 
tracting the  debt  or  incurring  the  obligation  for  which  the 
action  is  brought:  f)r 

i).  That  the  damages  for  which  the  action  is  brought  are 
for  injuries  arising  from  the  conninssion  of  some  felony,  or  for 
the  seduction  of  some  female. 

The  propertj-  of  a  debtor  may  be  attached  before  the  debt 
becomes  due,  when  nothing  but  time  is  wanting  to  fix  an  abso- 
lute indebtedness,  antl  when  the  affidavit,  in  addition  to  that 
fact,  states: 

1.  That  the  defendant  is  about  to  dispose  of  his  property 
with  intent  iv  defraud  his  creditor  i ;  or 

2.  That  defendant  is  about  to  remove  from  the  State,  and 
refuses  to  make  any  arrangements  for  securing  the  payment  of 
the  debt  when  it  falls  due,  and  which  contemplated  removal 
was  not  known  to  the  plaintiff  at  the  time  the  debt  was  con- 
tracted; or 


Chap.  6] 


VVASHiN<rroN. 


:}o3 


3.  That  the  defendant  has  disposed  of  his  property  in 
wliole  or  in  part  with  intent  to  defraud  his  ci'cditors;  or 

4.  That  the  debt  was  incurred  for  property  obtained  inider 
false  pretenses. 

Before  the  writ  of  attachment  shall  issue,  the  plaintiff,  or 
some  one  in  his  behalf,  shall  execute  and  tile  with  the  Cleik 
a  bond  or  undertaking,  with  two  or  more  sureties,  in  no  case 
less  than  three  hundred  dollars  in  the  Superior  Court,  nor  less 
than  fifty  dollars  in  the  Justice's  Court,  and  ilouble  the  amount 
for  which  the  plaintiff"  demands  judgment,  conditioned  that 
plaintiff"  will  prosecute  his  action  without  delay,  and  pay  all 
costs  that  may  be  adjudged  to  the  defendant,  ami  all  damages 
which  he  may  sustain  by  reason  of  the  attachment,  should  the 
same  be  wrongfully,  oppressively  or  maliciously  sued  out.  The 
sureties  must  qualify  that  they  are,  taken  together,  worth  the 
sum  specified  in  the  bond,  over  and  above  all  debts  and  liabil- 
ities, and  property  exempt  frou)  execution.  The  defendant 
may,  at  any  time  before  judgment,  move  for  additional  security 
if  the  bond  is  insufficient.  If  the  attachment  was  wrongfully 
sued  out,  and  there  was  no  reasonable  cause  to  believe  the 
ground  upon  which  the  same  was  issued  to  be  true,  actual 
damages  and  reasonable  attorneys'  fees  may  bo  recovered;  if 
it  be  shown  that  it  was  maliciously  sued  out,  exemplary  dam- 
ages may  be  recovered. 

Writs  of  attachment  shall  be  directed  to  the  Sheriff"  of  any 
county  in  which  property  of  the  defendant  may  be;  and  several 
may  be  issued  at  the  same  time  to  different  counties. 

Several  writs  against  the  same  party  are  executed  in  the 
order  received  b}'^  the  Sheriff. 

Real  property  is  attached  by  filing  a  copy  of  the  writ,  to- 
gether with  a  description  of  the  property  attached,  with  the 
County  Auditor  of  the  county  in  which  the  real  estate  is 
situated. 

Personal  property,  capable  of  manual  delivery,  shall  be 
attached  by  taking  into  custody.  ' 

Stocks  or  shares  are  attached  by  leaving  a  copy  of  the  writ 


SH 


Washington. 


[Part  1. 


li'   . 


n'  \ 


and  notice  with  the  president,  secretaiy,  cashier  or  managing- 
agent  thereof. 

Whenever  it  appears  by  the  affidavit  of  the  plaintiff,  or  the 
return  of  the  attachment,  tliat  no  property  is  known  to  tlie 
plaintitt'  or  officer,  or  not  enougli  to  satisfy  plaintiff's  claim, 
upon  affidavit  that  the  defendant  has  property  within  the 
State  not  exempt,  the  defendant  may  be  required  to  attend  be- 
fore the  Court,  Judge  or  referee,  and  give  information  on  both 
respecting  the  same.     (Ijaws  1885-6.) 

Garnishments. 

Persons  having  in  their  possession,  or  under  their  control, 
credits  or  personal  property  belonging  to  the  defendant  at  the 
time  of  service  of  the  writ  and  notice,  shall  be  liable  to  the 
plaintiff  for  the  amount,  unless  such  property  is  delivered  up  or 
turned  over  to  the  Sherifi'.  A  Sheriff,  Constable,  judgment 
debtor,  executor  and  administrator  may  be  garnished.  If  the 
garnishee  refuses  to  give  the  Sheriff  a  meinorandum  of  the 
debts  and  credits  attacheil,  he  may  be  cited  to  appear  before 
the  Court  to  answer  under  oath  respecting  such  debts,  credits, 
or  other  property. 

(larnishee  shall  not  be  liable  on  a  debt  due  by  negotiable 
papei",  unle.ss  such  paper  is  delivered,  or  the  garnishee  com- 
pletely exonerated  or  indenmified. 

This  Act  shall  be  literally  construed;  defects  in  the  com- 
plaint, affidavit,  bond,  writ  or  other  proceeding  may  be 
amended  if  it  can  be  shown  that  a  legal  cause  for  attachment 
existed  at  the  time  it  was  issued. 

Garnishment  in  Justice's  Court. 

When  an  action  is  counnenced  in  Justice's  Court  upon  con- 
tract, express  or  implied,  if  the  plaintiff  or  some  one  in  his  be- 
half makes  an  affidavit,  stating  that  he  has  good  reason  to  be- 
lieve that  some  person  is  indebted  to  the  defendant,  or  has 
personal  property  in  his  posse.ssion  or  under  his  control  belong- 


Cliap.  6] 


Washington. 


355 


iiif?  to  the  defendant  not  by  law  exempt,  the  officer  shall  suni- 
niou  such  person  as  garnishee.  The  garnishee  shall  be  exam- 
ined bv  the  Justice  on  the  return  day  touchinir  his  liability 
and  if  the  plaintiH'  shall  not  be  satisfied  with  the  answers  of 
such  garnishee,  he  may  proceed  to  trial  thereon.  The  garnishee 
is  liable  to  the  plaintiff  to  the  amount  of  the  personal  property, 
money,  credits  and  effects  in  his  hands,  and  the  amount  of  his 
own  indebtedness  to  the  defendant  then  due,  or  to  become  due, 
not  by  law  exempt. 

CHAPTER  VII. 

ARREST  IN  CIVIL  ACTIONS. 

Article  I,  section  17,  of  the  Constitution  provides:  "There 
"shall  be  no  imprisonment  for  debt,  except  in  cases  of  abscond- 
"ing  debtors." 


CHAPTER  VIII. 

JUDGMENTS  AND  JUDGMENT  LIENS. 

Judgments  .shall  bear  legal  rate  of  interest  from  date  there- 
of, except  when  rendered  upon  an  express  contract  in  writing, 
where  a  diftercnt  rate  of  interest  is  agreed  upon,  in  which  case 
the  judgment  shall  bear  the  .same  rate  of  interest  specified  in 
such  written  contract. 

Within  twenty  days  after  the  close  of  any  term  of  Court, 
the  Clerk  .shall  enter  in  the  execution  docket  a  statement  of 
each  final  judgment  rendered  at  such  ter)n,  and  shall,  at  the 
recjuest  of  the  judgment  creditor,  furnish  a  transcript  of  the 
judgment  to  said  judgment  creditor,  and  upon  the  filing  of 
said  transcript  in  the  office  of  the  County  Auditor,  it  .shall  be  a 
lien  upon  all  real  estate  of  said  judgment  debtor,  in  the  count}- 
where  such  transcript  shall  be  filed,  for  the  period  of  five  years 
from  the  dato  said  judgment  Avas  rendered.  And  ,sai<4  lien 
shall  attach  from  the  day  of  the  date  of  said  judgment,  if  said 
transcript  shall  have  been  filed  within  said  twenty  days. 


^J 


356 


Washington. 


[Part  1.') 


To  make  a  judgment  in  Justices'  Courts  a  lien  on  real  estate, 
the  plaintiff  must  tile  a  transcript  of  such  judgment  in  the 
office  of  the  Clerk  of  the  District  Court,  and  file  such  tran- 
script, certified  by  the  Clerk,  in  the  office  of  the  County 
Auditor  of  the  county  where  the  real  estate  is  situated. 


CHAPTER  IX. 


LIENS  OF  MECHANICS  AND  OTHERS. 


Demands  for  the  following  causes  constitute  liens  upon  all 
steamers,  vessels  and  boats,  and  shall  have  priority  in  the  order 
named;  to  continue  in  force  from  the  time  the  cause  of  action 
accrued: 

1.  For  .services  rendered  on  board. 

2.  For  supplies  furnished  in  this  State  for  their  use. 

3.  For  work  done  or  material  furni.shed  in  this  State  for 
construction,  repair  or  equipment. 

4.  For  wharfage  and  anchorage  within  this  State. 

5.  For  non-performance  or  malperformance  of  contract  of 
transportation  of  persons  or  property. 

6.  For  injuries  committed  by  them  to  persons  or  property 
within  this  State, 

Persons  performing  labor  upon,  or  who  shall  assist  in 
obtaining  or  securing  saw-logs,  .spars,  piles  or  other  timbei-,  has 
a  lien  upon  the  same  for  the  work  and  labor  done.  Persons 
performing  labor  upon,  or  who  assist  in  manufacturing  saw- 
'ogs  into  lumber,  have  a  lien  on  the  timber.  The  person  claim- 
ing the  lien  must  Hie  his  statement  within  thirty  days  after 
the  rendition  of  the  services. 

Every  person  performing  labor  upo/i,  or  furnishing  mate- 
rials for  the  construction,  alteration,  or  repair  of  any  mining 
claint,  building,  wharf,  bridge,  ditch,  dyke,  flume,  tunnel,  fence, 
machinery,  railroad,  wagon-road,  aquerkict,  or  any  other  struc- 
ture; or  grades  or  improves  any  lot  in  any  incorporated  city 


■Chap.  9] 


Washington. 


357 


■or  town,  at  the  instance  of  the  owner  or  his  agent,  and  every 
■contractor,  sub-contractor,  architect  and  builder,  lias  a  lien  for 
the  work  or  labor  done  or  materials  furnished. 

He  must  file  within  ninety  days  a  statement  of  his  demand, 
in  the  office  of  the  County  Auditor  of  the  county  where  the 
property,  or  some  part  thereof,  is  situated,  a  statement  of  his 
demands  over  and  above  all  just  credits  and  offsets.  Action 
to  foreclose  the  lien  must  be  connnenced  in  eight  calendar 
months.  Such  liens  are  px-eferred  to  subsequent  incumbrances, 
or  any  unrecorded  incumbrance  of  which  the  lien -holder  had 
no  notice,  and  shall  rank  in  the  following  order:      . 

1.  All  persons  other  than  the  original  contractor  and  sub- 
<;on  tractors 

2.  Sub-contractor. 

.'i.     Oi-iginal  contractor. 

The  wages  of  miners,  lechanics,  salesmen,  servants,  clerks 
or  laborers  to  the  amount  of  one  hundred  dollars  each,  and  for 
services  rendered  within  sixty  days  previous  to  an  assignment, 
or  in  proceedings  of  insolvency,  are  preferred  claims;  also,  in 
cases  of  execution,  attachment,  and  writs  of  similar  nature. 

Farm  laborers  and  landlords  have  a  lien  on  the  crops. 
Such  lien  mu.st  be  filed  in  thirty  days  in  the  office  of  the 
County  Auditor. 


Ill 


CHAPTER  X. 

EXECUTIONS,  EXEMPTIONS,  SALES  AND 
REDEMPTIONS. 

The  party  in  whose  favor  judgment  is  given  may  have 
ext'cution  on  a  judgment  at  any  time  within  five  years  after 
its  rendition;  if  the  period  of  five  years  shall  have  elapsed 
without  an  execution  having  been  issued,  none  shall  issue 
uidess  the  creditor  or  his  assignee  shall  file  a  motion  with  the 
CMerk  of  the  Court  where  judgment  is  entered  to  revive  and 
continue  the  lien  of  the  same,  with  leave  to  issue  execution, 
subscribed  and  verified  in  like  manner  as  a  complaint,  and  shall 
cause  notice  of  such  motion  to  be  served  on  the  judgment 


Hi 


.S.hS 


Washington. 


[Part  15 


It: 


Pi 


!(' 


•  It'btor  in  liko  inaniier  and  with  like  eflect  as  a  .suniinons.  Tlie 
motion  shall  ha  tried  as  any  other  action.  Upon  hearing  the 
motion,  the  Court  may  order  that  judgment  be  entered  and 
docketed  as  other  judgments. 

Executions  re(|uire  the  Sheriti"  to  exhau.st  the  personal 
property  of  the  debtor,  not  exempt  from  execution,  before 
levying  on  real  estate.  •  ' 

Executions  against  the  property  of  any  judgment  debtor 
may  be  issued  to  the  Sheriff  of  any  county  in  the  State,  but 
shall  not  in  the  first  instance  be  issued  to  the  Sheriff  of  any 
county  in  which  judgment  was  not  rendered,  unless  the  plaintifl' 
or  his  attorney  make  and  file  with  the  Olerk  an  affidavit  that 
defendant  has  not  subject  to  execution  sufficient  property,  real 
or  personal,  in  the  county  in  which  judgment  was  rendered,  to 
satisfy  the  judgment;  but  that  he  has  property  subject  to 
execution  in  some  other  county.  If  execution  is  returned,  '•  no 
property  found,"  in  the  county  where  judgment  was  rendered, 
execution  may  be  issued  to  any  other  county,  upon  plaintiti' 
making  oath  that  defendant  has  property  in  such  county. 

Fxecution  may  be  stayed  by  defendant  on  giving  a  Ijond  to 
the  opposite  party  in  double  the  amoiuit  of  the  judgment  and 
costs,  with  surety  to  the  satisfaction  of  the  Clerk,  conditioned 
to  pay  '*aid  judgment,  interest,  costs  and  increased  costs,  at  the 
expiration  of  the  period  of  the  stay,  which  is  as  follows:  In  the 
Supreme  Court,  on  all  sums  under  $oOO,  thirty  days;  on  all 
sums  over  $500  and  under  $1500,  .sixty  days;  on  all  sums  over 
$1500,  ninety  day.s.  In  the  Superior  Court,  on  all  smns  under 
$300,  two  months;  on  all  suras  over  $300  and  under  $1000, 
five  months;  on  all  sums  over  $1000,  six  month.s.  In  Justices' 
Courts,  on  any  sum  not  exceeding  $25,  one  month ;  more  than 
$25,  two  months. 

Exemptions. 


All  property,  real  and  personal,  belonging  to  a  married 
woman  at  the  time  of  her  marriage,  and  all  which  she  may 
subsequently  acijuire  in  her  own  right,  and  all  her  personal 
earnings,  and  all  the  issues,  rents  and  profits  of  such  real  estate 


Cliap.  10] 


VVashinotox. 


;}.-)!) 


sliall  1)0  I'xoiiipt  from  attnclnnent  uiid  cxijciition  upon  iuiy 
liability  or  judgiiieiit  against  thu  husband,  so  lon^'  as  she  or 
any  minor  hoir  of  her  body  shall  be  living.  Providtjd,  that  lur 
separate  property  shall  be  liable  for  debts  owing  by  her  at  tlic 
time  of  her  marriage. 

Every  houseliolder,  being  the  ]iea<l  of  a  family,  is  entitled, 
as  exempt  from  attachmeJit  and  exeeution,  to  a  homestead  not 
exceeding  in  value  the  sum  of  one  th(nisand  dollars,  while 
occupied  as  such  by  the  owner  thereof,  or  his  ji-  her  family. 
Said  homestead  may  consist  of  a  hou.se  and  lot,  or  lots  in  any 
city,  or  of  a  farm  consisting  of  any  number  of  acres,  so  that 
the  value  shall  not  exceed  !?l()()0.  Any  sul)se(pient  homestead 
ae(|uir(!d  with  the  proceeds  of  a  sale  of  n  former  homistead 
shall  be  exempt. 

The  following  property  shall  also  be  exempt  from  execution  : 
All  wearing  apparal  of  every  person  and  family,  private 
libraries  not  to  exceed  !?oO()  in  value,  family  pictures  and 
keepsakes;  to  each  householder,  one  bed  and  bedding,  and  one 
additional  bed  and  bedding  for  each  additional  mend)cr  of  the 
family,  and  other  household  goods,  utensils  and  furniture  not 
exceeding  !?500  coin  in  value;  two  cows  with  their  calves,  five 
swine,  two  stands  of  bees,  thirty-six  dome.stic  fowls,  and 
provisions  and  fuel  for  the  comfortable  maintenance  of  such 
householder  and  family  for  .six  months,  aLso  feed  for  such 
animals  for  six  months.  In  case  such  householder  does  not 
possess,  or  does  not  desire  to  retain  the  animals  above  named, 
lie  may  retain  other  property  not  to  exceed  S250.  To  a 
farmer,  one  span  of  horses  or  mules,  and  harness,  or  two  yoke 
of  oxen,  with  yokes  and  chains,  and  one  wagon;  also  farming 
utensils  actually  used  about  the  farm,  not  exceeding  in  value 
SoOO  in  coin ;  also  one  hundred  and  iifty  bushels  of  wheat,  one 
hundred  and  fifty  bushels  of  oats  or  barley,  fifty  bushels  of 
potatoes,  ten  bushels  of  corn,  ten  bushels  of  peas,  and  ten 
bushels  of  onions  for  seeding  purposes.  To  a  mechanic,  the 
tools  of  his  trade,  also  material  not  exceeding  in  value  #500 
coin.  To  a  physician,  his  library,  not  exceeding  in  value  !?500 
coin ;  also  one  horse  with  harness  and  buggy,  the  instruments 


I 


mo 


VVahhin(}ton. 


[Part  15 


i 


used  in  his  practice,  and  medicines  not  exceciding  in  value 
$200  coin.  To  attorneys,  clergymen  and  other  profcasional 
men,  their  libraries,  not  exceeding  SIOOO  coin  value,  and 
office  furniture,  fuel  and  stationery,  not  exceeding  $200  com 
value.  All  firearms  kept  for  the  u.se  of  any  person  or  fam- 
ily. To  all  persons,  a  canoe,  .skitt",  or  small  boat,  with  its 
oars,  sails  and  rigging,  not  exceeding  $250.  To  a  person 
engaged  in  lightering  for  bis  support,  or  that  of  his  family , 
one  or  more  lighters,  barges,  or  scows,  and  a  small  l>oat  with 
oars,  sails  and  rigging,  not  exceeding  in  the  aggregate  $250 
gold  coin.  To  a  teamster  or  drayman,  engaged  in  that  business 
for  the  support  of  himself  or  his  family,  his  team,  con.sisting 
of  a  span  of  horses,  or  mules,  or  two  yoke  of  oxen,  or  a  horse 
and  mule,  with  harness,  yokes,  one  wagon,  truck,  cart  oi  dray. 
To  a  person  engaged  in  logging,  for  the  support  of  himself  and 
family,  three  yoke  of  work  cattle,  with  their  yokes,  and  axes, 
chains,  implements  for  the  business  and  camp  equipments,  not 
exceeding  $300  coin  in  value;  a  sufficient  quantity  of  hay, 
grain  or  feed  to  keep  the  animals  herein  exempt  for  six  weeks. 
No  property  shall  be  exempt  from  an  execution  issued  on  a 
judgment  for  the  price  thereof,  or  any  part  of  the  pi'ice  thereof, 
or  for  any  tax  levied  thereon. 

Sale  of  Property  under  Execution. 

Personal  property  is  sold  by  the  Sheriff'  upon  ten  days'  no- 
tice of  the  time  and  place  of  such  sale,  posted  in  three  public 
places  of  the  county  where  such  sale  is  to  take  place ;  real  es- 
tate, by  posting  similar  notices,  particularly  describing  the 
property,  for  four  weeks,  successively,  in  three  public  places  of 
the  county  where  the  property  is  to  be  sold,  and  publishing  a 
copy  thereof  once  a  week  for  the  same  period  in  a  newspaper 
of  the  county,  if  there  be  one,  if  not,  then  in  a  newspaper  pub- 
lished nearest  to  the  place  of  sale.  All  sales  of  property  upon 
execution  shall  be  by  auction.  When  the  sale  is  of  personal 
property  capable  of  manual  delivery,  it  shall  be  in  view  of 
those  who  attend  the  sale,  and  of  real  estate,  at  the  Court- 
house door. 


Chap.  10] 


Washington. 


Redemption. 


3(il 


Sales  of  "  ^l  estate  are  confirmed  at  the  next  term  of  tlie 
Superior  Court  following  the  return  of  the  execution ;  or  if  re- 
turned in  term  time,  then  at  such  term.  The  judgment  debtor,  or 
his  .successor  in  interest,  may  redeem  any  real  estate  sold  under 
execution  or  foreclosure  of  mortgage  at  any  time  within  one 
year  from  tiie  date  of  the  sale,  by  paying  the  amount  v"  ,.ur- 
chase  money,  with  one  per  cent,  per  month  interest  from  the 
date  of  sale,  together  with  the  taxes  which  the  purchaser  may 
have  paid. 

CHAPTER  XI. 

PROOEEDINGS  SUPPLEMENTARY  TO  EXECUTION 

The  plaintiff,  in  proceedings  supplementary  to  execution, 
may,  upon  a  proper  showing  to  the  Court  or  Judge,  have  an 
order  recjuiring  defendant  to  appear  and  answer  as  to  any 
propei'ty  which  he  may  have  subject  to  execution,  and  which 
ought  to  be  applied  on  the  judgment;  or  if  it  appears  there  is 
danger  of  the  defendant  absconding,  the  order  may  require  his 
arrest,  and  upon  being  brought  before  the  Judge  he  may  be 
ordered  to  enter  into  bond,  with  surety,  that  he  will  appear 
from  time  to  time  during  such  proceedings,  and  will  not  in  the 
meantime  dispose  of  any  of  his  property  subject  to  execution. 
Any  person  indebted  to  the  defendant  in  the  sum  exceeding 
fifty  dollars,  may  be  required  to  appear  and  answer  concerning 
the  same. 

CHAPTER  XII. 
REPLEVIN. 

In  an  action  to  recover  the  possession  of  personcl  property, 
the  plaintiff,  or  some  one  in  his  behalf,  shall  make  an  aflfidavit 
showing: 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed, 
or  is  lawfully  entitled  to  the  possession  thereof. 


i 


J 


862 


Washington. 


[Part  15 


iK- 


m 


'■I 


1^  :| 


1:;: 


I'r 


2.  Tliat  the  property  is  wrongfully  detained  by  defendant. 

3.  Tliat  the  same  has  not  been  taken  for  a  tax,  assessment, 
tine,  or  seized  under  execution  or  attachment. 

4.  The  actual  value  of  tlie  property. 

The  Sheriff  shall,  upon  receipt  of  the  affidavit  and  a  bond 
executed  by  one  or  more  sureties  in  double  the  value  of  the 
property,  take  the  property  into  liis  possession.  The  defend- 
ant may,  within  three  days  after  the  service  of  tlie  bond  and 
affidavit,  object  to  the  sufficiency  of  the  sureties.  The  defend- 
ant may  demand  a  return  of  the  property  hy  furnishing  an 
indemnity  bond,  witli  two  or  more  sufficient  sureties,  to  the 
Sheriff  in  double  the  value  of  the  pi'operty. 


CHAPTER  XIII. 

SECURITY  FOP   COSTS. 

When  the  plaintiff  resides  out  of  the  county,  or  is  a  foreign 
corporation,  security  for  costs  may  be  required  by  the  defend- 
ant; when  recjuired,  all  proceedings  in  the  action  shall  bo 
stayed  until  a  bond,  executed  by  two  or  more  persons,  be  tiled 
with  the  Clerk,  conditioned  that  they  will  pay  such  costs  and 
charges  as  may  be  awarded  against  plaintift',  not  exceeding  tlie 
sum  of  8200.     (Sec.  527,  Code  lcS81.) 


111 


'l\ 


CHAPTER  XIV. 

APPEALS  AND  WRITS  OF  ERROR. 

May  be  taken  from  the  Superior  Court  to  the  Supreme 
Court  at  any  time  within  six  months  from  the  rendition  of  the 
order,  judgment,  or  decree  appealed  from,  and  not  afterward. 
To  stay  proceedings  in  the  Court  below,  the  appellant  or  ])laint- 
ifi'in  error  nuist  file  a  bond  with  sureties  to  the  satisfaction  of 
the  Clerk.  Appeals  from  the  Probate  Court  to  the  Superior 
Court  mu9t  be  taken  within  sixty  days  from  the  rendition  of 
the  decision  or  judgment;  and  from  Justices  of  the  Peace  to 


Chap.  14] 


Washington. 


•SCS 


tlie  Superior  Court,  within  twenty  <Uiys  from  tlie  date  of  tlio 
judgment.  The  party  appealing  shall  execute  and  Hie  with 
the  Justice  a  bond,  with  one  or  more  sureties,  in  the  sum  of 
$100,  to  the  effect  that  the  appellant  will  pay  all  costs;  or  if  a 
stay  of  proceedings  be  claimed,  a  bond,  with  two  or  more  sure- 
ties, in  a  sum  equal  to  twice  the  amount  of  the  judgment  and 
costs. 


CHAPTER  XV. 
ESTATES  OF  DEOEi.SED  PERSONS. 

Claims  against  decedents'  estates  nmst  be  tiled  within  one 
year  from  the  publication  of  notice  to  creditoi-s,  at  the  place*  of 
re.sidence,  or  transaction  of  business  of  the  executor  or  admin- 
istrator. Claims  not  presenteil  within  one  year  after  the  first 
publication  of  notice  are  barred.  Every  claim  presente<l  to 
the  administrator  must  be  supported  by  the  affidavit  of  the 
claimant  that  the  amount  is  justly  due,  that  no  payments  have 
been  made  thereon,  and  that  there  are  no  offsets  to  the  same 
to  the  knowledoje  of  the  claimant.  The  oath  may  be  takm 
before  any  officer  authorized  to  administer  oaths.  The  claim 
being  thus  proved,  must  be  presented  to  the  administrator  for 
hi.s  allowance;  if  he  allow  it,  it  is  presented  to  the  probate 
Judge  for  his  allowance,  when,  if  allowed  by  him,  the  same  is 
riled.  If  either  the  administrator  or  probate  Judge  reject  it, 
the  party  has  tlnv^e  months  within  which  to  bring  suit  on  it. 
Estates  nmst  be  settled  within  one  year,  unless  further  time  be 
granted  by  the  Court. 

Administration  of  the  estate  of  a  person  dying  intestate 
shall  be  granted  to  the  following  persons  in  their  respective 
order: 

1.  The  surviving  husband  or  wife,  or  such  person  as  he  or 
siie  may  request  to  liave  appointed. 

2.  'ihenextof  kin  in  the  following  order:  (I)  Child  or 
children;  (2)  father  or  mother:  {'.])  brothers  or  sisters;  (4) 
grandchildren. 


! 


864 


Washington. 


[Part  15 


I  u 


3.  To  one  or  more  of  the  principal  creditors,  if  the  persons 
entitled  shall  neglect  for  more  than  forty  days  after  the  death 
of  the  intestate  to  present  a  petition  for  letters  of  administra- 
tion ;  or  if  there  are  no  relatives  or  next  of  kin ;  or  if  the  par- 
ties entitled  waive  their  right,  the  Court  may  appoint  any 
isuitable  and  competent  person. 

Application  for  letters  of  administration  shall  be  made  in 
wi'iting,  setting  forth  jurisdlci/ional  facts;  and  the  applicant 
shall  make  an  affidavit  giving  the  names  and  places  of  resi- 
dence of  the  heirs  of  the  deceased  so  far  as  known. 

The  administrator  must  take  an  oath  that  he  will  perform 
his  trust ;  and  must  execute  a  bond  to  the  State  in  twice  the 
value  of  the  property,  with  two  or  niore  sureties  to  be  approv- 
ed by  the  probate  judge ;  he  shall,  within  one  month,  make  and 
return  a  true  inventory  of  the  real  and  personal  estate  of  the 
deceased,  and  the  same  shall  be  appraised  by  three  disinterest- 
ed persons. 

If  the  intestate  leaves  a  widow  or  minor  children,  and  his 
estate  does  not  exceed  live  hundred  dollars,  the  whole  estate 
sliall  be  assigned  to  the  widow  and  minor  children  after  the 
funeral  expenses  and  expenses  of  administration  are  paid. 

Lands,  tenaments  and  hereditaments  not  having  been  de- 
vised shall  descend,  subject  to  the  debts,  as  follows: 

If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
only  one  child,  or  the  lawful  issue  of  one  child,  in  equal  shares 
to  the  surviving  husband  or  wife  and  child,  or  issue  of  such  child. 
If  more  than  one  child  is  living,  or  one  child  living  and  the 
lawful  issue  of  one  or  more  deceased  children,  one-third  to  the 
surviving  husband  or  wife,  and  the  remainder  in  equal  shares 
to  the  children  and  to  the  lawful  issue  of  any  deceased  child 
by  right  of  representation.  If  no  child  of  the  decedent  is  liv- 
ing at  his  death,  the  remainder  goes  to  all  his  lineal  descendents. 

If  there  is  no  issue,  the  estate  goes  in  ecjual  shares  to  the 
surviving  husband  or  wife,  and  to  the  decedent's  father  and 
mother.  If  there  be  no  father  nor  mother,  one-half  goes  to  the 
brothers  and  sisters  of  the  decedent,  or  the  issue  of  any  deceas- 
ed brother  or  sister.     If  decedent  leave  no  issue,  nor  husband 


I 


Chap.  15] 


Washington. 


3G.5 


nor  wife,  the  estate  goes  to  his  father  and  mother,  and  if 
there  is  no  father  and  mother,  in  equal  shares  to  the 
brothers  and  sisters,  or  the  issue  of  any  deceased  brother 
or  sister.  If  there  is  no  issue,  nor  father  nor  mother,  nor 
brother  nor  sister,  the  whole  estate  goes  to  the  surviving 
husband  or  wife.  If  decedent  leaves  no  issue,  nor  husband, 
nor  wife,  and  no  father  nor  mother,  nor  brother  nor  sister,  the 
estate  goes  to  the  next  of  kin  in  equal  degree,  those  claiming 
through  the  nearest  ancestor  being  preferred.  If  a  child  of 
decedent  die  under  age  and  unmarried,  the  share  which  he  in- 
herited from  such  decedent  shall  go  to  the  remaining  children 
or  their  issue,  if  all  be  in  the  same  degree  of  kindred,  in  equal 
shares,  otherwise  by  representation.  At  the  death  of  the  last 
surviving  child  who  dies  under  age  and  unmarried,  the  estate 
that  came  to  such  child  by  inheritance  descends  to  the  issue  of 
all  other  children  of  the  same  parent;  if  there  be  no  husband, 
wife  or  kindred,  the  estate  escheats  to  the  State  fo^'  the  support 
of  common  schools. 

Subject  to  community  debts,  one-half  of  the  community 
property  shall  go  to  the  surviving  husband  or  wife,  and  the 
other  half  shall  be  subject  to  testamentary  disposition ;  if  no 
testamentary  disposition  is  made,  it  shall  descend  equally  to 
the  legitimate  issue  of  his,  her  or  their  bodies ;  if  no  issue  or 
their  representatives  be  living,  then  said  community  property 
shall  all  pass  to  the  survivors  to  the  exclusion  of  collateral 
heirs,  subject  to  community  debts,  family  allowance,  and 
charges  and  expenses  of  administration.  Tenancy  in  dowor 
and  tenancy  by  courtosj'  are  hereby  abolished. 

An  illegitimate  child  is  an  heir  to  a  person  who  shall,  in 
writing,  signed  in  the  presence  of  a  competent  witness,  have 
acknowledged  himself  to  be  the  father  of  such  child,  and  in  all 
cases  as  an  heir  of  his  mother;  but  he  shall  not  be  allowed  to 
claim  as  representing  his  father  or  mother,  any  pait  of  the  es- 
tate of  his  or  her  kindred,  unless  before  his  death  his  parents 
shall  have  intermarried,  and  his  father  shall  have  acknowledged 
him  and  adopted  hhn  into  his  family.     (Sec.  3305,  Code  1881.) 

If  an  illetritimate  child  shall  die  intestate,  without  lawful 


;i(j() 


Washington. 


[Part  15 


issue,  his  estate  shall  descend  to  liis  mother,  or  in  case  of  her 
decease,  to  her  heirs  at  law.     (Sec.  330G,  Code  1881.) 

The  degrees  of  kindred  shall  be  computed  according  to  the 
civil  law,  and  the  children  of  the  half-blood  shall  inherit 
c'tiually  with  those  of  the  whole  blood,  in  the  same  degree. 
(Sec.  3307;) 

Personal  property  shall  be  applied  and  distributed  as 
follows: 

The  widow  shall  be  allowed  all  articles  of  apparel  and  or- 
nament, according  to  the  degree  and  estate  of  her  husband, 
and  such  provisions  and  neces.saries  for  herself  and  family  as 
are  allowed  by  the  Court.  After  the  debts,  funeral  expenses, 
and  charges  for  settling  estate  are  paid,  the  residue  shall  be 
distributed  among  the  same  persons  as  would  be  entitled  to 
real  estate,  and  in  the  same  proportion .  excepting  if  there  be 
a  surviving  wife  or  husband,  and  issue,  each  shall  take  one- 
half;  if  no  issue,  the  surviving  husband  and  wife  shall  be  en- 
titled to  the  whole  of  the  residue.     (Sec.  3316.) 


CHAPTER  XVI. 

WILLS. 

Every  person  of  the  age  of  majority,  and  of  sound  mind, 
may  devise  all  his  real  and  personal  estate.  Every  will  shall 
be  in  writing,  signed  by  the  testator,  or  by  some  other  person, 
luider  his  or  her  direction  in  his  or  her  presence,  and  shall  be 
attested  by  two  or  more  competent  witnesses,  subscribing  their 
names  to  the  will  in  the  presence  of  the  testator.  A  person 
who  signs  the  testator's  name  by  reciuest  shall  subscribe  his 
own  name  as  a  witness,  and  state  that  he  subscribed  the 
testator's  name  at  his  request.  No  nuncupative  will  shall  be 
good  when  the  estate  beciueathed  exceeds  two  hundred  dollars, 
unless  proved  by  two  witnesses,  present  at  the  making  thereof, 
and  it  be  proven  that  the  testator  did  bid  some  pei'son  present 
to  witness  that  such  was  his  will,  and  such  will  was  made  at 


Chap.  16] 


Washington. 


867 


tlio  time  of  the  last  sickness  and  at  the  dwellinof-house  of  the 
deceased,  or  wliere  he  had  been  residing  for  ten  days  or  more, 
except  such  person  was  taken  sick  from  home  and  died  before 
his  return.  A  mariner  at  sea,  or  soldier  in  the  military  service, 
may  dispose  of  his  wages  or  personal  property  by  nuncupative 
will. 


CHAPTER  XVII. 

HOMESTEADS. 

See  Exemptions. 


CHAPTER  XVIII. 

DEPOSITIONS. 

Of  witnesses  may  Ite  taken  to  be  read  in  evidence  in  an 
action,  suit  or  proceeding  commenced  and  pending  in  anj'-  Court 
in  this  State  when  the  witness  resides  out  of  the  county,  and 
more  than  twenty  miles  from  the  place  of  trial ;  or  when  the 
witness  is  about  to  leave  the  county  and  go  more  than  twenty 
miles  from  the  place  of  trial,  and  there  is  a  probability  that 
he  will  continue  absent  when  the  testimony  is  required;  or 
when  he  is  sick,  infirm,  or  aged,  so  as  to  make  it  pi'obable  he 
will  not  be  able  to  attend  the  trial;  when  the  witness  resides 
out  of  '  State.  Depositions  of  witnesses  in  this  State  may 
be  taken  before  any  Judge  of  the  Superior  Court,  Justice  of 
the  Peace,  Clerk  of  the  Supreme  or  Superior  Courts,  Mayor  of 
a  city  or  Notary  Public,  upon  serving  on  the  adverse  party,  or 
his  attorney,  previous  notice  of  the  time  and  place  of  examin- 
ation. The  notice  shall  be  served  so  as  to  allow  the  adverse 
party  sufficient  time  by  the  usual  route  of  travel  to  attend,  and 
three  days  f.)r  preparation,  exclusive  of  the  day  of  service.  The 
deposition  shall  be  written  by  the  officer  taking  the  same,  or 
by  the  witness,  or  by  some  disinterested  person  in  the  presence 
and  under  the  direction  of  such  officer.  When  completed  it 
shall  be  carefully  read  to  or  by  the  witness,  corrected  if  desired. 


368 


Washington. 


[Part  15 


subscribed  by  him,  and  certified  by  the  officer  substantially  as 
follows: 


State  of  Washington,  | 


County  of- 


ss. 


I,  A.  B.,  Justice  of  the  Peace  in  and  for  said  county  (or 
Judge,  Clerk,  etc.,  as  the  case  may  be),  do  hereby  certify  that 
the  above  depositi'  i  was  taken   before  me  and  reduced    to 

writing  by  myself  (or  witness,  as  the  case  may  be)  at , 

in  said  county,  on  the  day  of  18 — ,  at  o'clock,  in 

pursuance  of  notice  hereto  annexed;  that  the  above  named 
witness,  before  examination,  was  sworn  (or  affirmed)  to  testify 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  and  that 
the  said  deposition  was  carefully  read  to  (or  by)  said  witness, 
and  then  subscribed  by  him. 

A.  B.,  Justice  of  the  Peace. 

Dated  at ,  the day  of 18 — . 

The  deposition  shall  be  enclosed  in  a  sealed  envelope  by 
the  officer  taking  the  same,  and  directed  to  the  Clerk  of  the 
Court,  arbitrators,  referee,  or  Justice  of  the  Peace  before  whom 
the  action  is  pending,  or  to  such  person  as  the  parties  in 
writing  may  agree  upon,  and  either  delivered  to  the  Clerk  of 
the  Court,  or  other  person,  or  transmitted  through  the  mails, 
or  by  some  private  person. 

Depositions  may  be  taken  out  of  the  State  by  a  Judge, 
Justice  or  Chancellor,  or  Clerk  of  any  Court  of  record,  a  Justice 
of  the  Peace,  Notary  Public,  Mayor  or  Chief  Magistrate  of  any 
city  or  town,  or  any  person  authorized  by  special  commission 
from  any  Court  of  the  State;  any  Court  of  record  in  this  State, 
or  the  Judge  thereof,  is  authorized  to  grant  a  connnission  to 
take  depositions  in  or  out  of  the  State.  Prior  to  the  taking  of 
the  deposition,  written  or  printed  notice  (as  mentioned  above) 
specifying  the  action  or  proceeding,  the  name  of  the  Court  or 
tribunal  in  which  it  is  to  be  used,  an^^  the  time  and  place  of 
taking  the  same,  must  be  served  upon  the  adverse  party,  his 
agent  or  attorney  of  record.  If  the  party  against  whom  the 
deposition  is  to  be  read,  is  absent  from  or  a  non-resident  of  tlie 


Chap.   l.S] 


Washington. 


•M]d 


State,  aiitl  ha.s  no  agent  or  attorney  of  record  therein,  he  may 
he  notified  of  the  taking  of  tlie  deposition  hy  puhlication  for 
tliree  consecutive  weeks  in  some  newspaper  printed  in  the 
county  where  the  action  is  pending;  and  if  none  be  printed 
tliere,  in  some  newspaper  printed  in  the  State,  of  general 
circuhition  in  that  coimty.  The  publication  must  contain  all 
that  is  recpiired  in  the  written  or  printed  notice. 

The  deposition  should  be  written  and  certiiied  as  above. 


CHAPTER   XIX.    ' 

JUDICIAL  RECORDS  OF  OTHER    STATES— 
HOW  PROVED. 

The  I'ecords  and  pi-oceeilings  of  any  Court  of  the  United 
States,  or  any  State  or  Territory,  shall  be  admissible  in  evidence 
in  all  cases  in  this  State,  when  duly  authenticated  by  the 
attestation  of  the  Clerk,  Prothonotary,  or  other  officer  having 
charge  of  the  records  of  such  Court,  with  the  seal  of  such  Court 
annexed.  " 


CHAPTER  XX. 

CONVEYANCES  AND  ACKNOWLEDGMENTS. 

All  conveyances  of  real  estate,  or  of  any  interest  therein, 
and  all  contracts  creating  or  evidencing  any  incumbrance  on 
real  estate,  shall  be  by  deed.  Deeds,  mortgages,  and  other  in- 
struments in  writinii  must  be  acknowledged  before  one  of  the 
following  officers,  if  made  in  this  State :  a  Judge  of  the  Su- 
preme Court,  a  Judge  of  the  Superior  Court,  a  Judge  of  the 
Probate  Court,  a  .histice  of  the  Peace,  a  County  Auditor,  Dep- 
ut)'  Auditor,  a  Clerk  or  Deputy  Clerk  of  the  Superior  or  Su- 
preme Court,  or  a  Notary  Public,  <luly  (lualified.  Deeds  or 
conveyances  of  lands  situated  in  this  State,  may  be  executed 


.'370 


Washington. 


[Part  1; 


if 


it--' 


f>r  ncknowledged  in  anj'  other  State  or  Territory  of  the  United 
States,  in  tlie  form  prescribed  for  executing  and  acknowledg- 
ing deeds  in  this  State,  and  tlie  execution  thereof  may  be  ac- 
kiiowledgt.'d  liefoie  an}^  person  authorized  to  take  acknowledg- 
ments of  deeds  by  the  laws  of  the  State  or  Territory  wherein 
the  acknowledgment  is  taken,, or  before  any  Commissionei* 
Mppointed  by  the  Governor  of  Washington  for  such  purpose. 
Unless  such  acknowledgment  be  taken  before  such  Connnis- 
sioner,  or  by  the  Clerk  of  a  Court  of  record  of  said  State  or 
Territory,  or  by  a  Notary  Public  or  other  officer  having  a  seal 
of  office,  then  such  deed  shall  have  attached  thereto  a  certificate 
of  the  Clerk  of  a  Court  of  record,  under  the  seal  of  said  Court 
of  said  county  or  district,  or  a  certificate  of  any  other  proper 
certifying  officer  of  said  district  or  county,  within  which  the 
acknowledgment  was  taken,  under  the  seal  of  his  (jffice,  that 
the  |)erson  wIkjsc  nam;  is  subscribed  to  the  cei'tificate  of  ac- 
knowledgment was,  at  the  date  thereof,  such  officer  as  he  is 
therein  represented  to  be;  that  he  is  authorized  by  law  to  take 
acknowledgments  of  deeds;  and  that  he  verily  believes  the 
signature  of  the  person  subscribed  thereto  to  be  genuine. 
Aeknowledjjjments  of  all  deeds,  mortoaces,  and  other  instru- 
ments  in  writing  may  be  nuide  and  taken  in  any  foreign  coun- 
try, beyond  the  limits  of  the  United  States,  before  any  Minis- 
ter Plenipotentiary,  Secretary  of  Legation,  C/ntrye  d' Affaires, 
Consul,  Consul-General,  Vice-Consul,  or  Commercial  Agent 
appointed  by  the  Government  of  the  United  State,  or  the 
proper  officer  of  any  (Jourt  of  .said  country,  or  the  Mayor  or 
other  chief  Magistrate  of  any  city,  town,  or  other  municipal 
corporation  therein. 

A  deed  shall  be  in  writing,  signed  by  the  party  bound 
thereby,  and  acknowledged  by  the  party  making  it,  before 
some  person  authorized  by  the  laws  of  this  State  to  take  the 
acknowledgment  of  deeds.  The  use  of  private  .seals  to  the 
signature  of  the  grantor  or  grantors  is  abolished.  (Laws  liS87-8.) 

A  married  woman  shall  not  be  bound  by  any  deed  afiecting 
her  own  real  estate,  or  releasing  dower,  unless  .she  shall  be 
joined  in  the  conveyance  by  her  husband,  and  shall  acknowl- 


Clia)).  20] 


Washington. 


:37l 


vih^r  that  she  did  vohmtarily  of  lier  own  free  will  execute  the 
deed.     (2313.) 

All  deeds  and  mortgages  shall  be  i-ecorded  in  the  office  of 
the  County  Auditor  where  the  land  is  .situated,  and  when  so 
filed  and  recorded  shall  be  notice  to  the  world.     (2314.) 

A  certificate  of  acknowledgment  suVistantially  in  the  fol- 
lowintf  f(jrm  shall  V)e  sufficient: 


S'iatf:  of- 


County  of- 


I. 


s. 


I  (here  give  name  of  otiicei'  and  official  title)  do  hereby 
certify,  that  on  this  day  of ,  180 — ,  personally  ap- 
peared before  me  (name  of  grantor,  and  if  acknowledged  by 
wife,  her  name,  and  add  "his  wife"),  to  me  known  to  be  the 
individual  (or  individuals)  described  in,  and  who  executed  the 
Avithin  instrument,  and  acknowledged  that  he  (she  or  they) 
sigiuMl  and  sealed  the  same  as  (his,  her  or  their)  free  and  vol- 
untaiy  act  and  deed,  for  the  uses  and  purposes  therein  men- 
tioned.    Given  under  my  hand  and  official  seal,  this day 

of A.  I).  189—. 

[seal.]  (Signature  of  officer.) 

Place  of  residence,  and  date  of  expiration  of  commission. 

In  case  the  owner  of  a  homestead  voluntaril)'  mortgages 
the  same,  said  mortgage  shall  not  be  valid  against  his  wife,  who 
may  be  occupying  said  homestead  with  him.  unless  she  shall 
freely  and  voluntarily,  separate  and  apart  from  her  husband, 
sign  and  acknowledge  it,  and  the  officer  taking  the  acknowl- 
edgement shall  fully  appri.se  her  of  lier  rights,  and  of  the  effect 
of  .signing  such  mortgage. 


CHAPTER  XXI. 

LIMITED  PARTNERSHIPS— CODE  OF  1881. 

Limited  pai'tnorships  for  the  transaction  of  mercantile, 
mechanical,  or  manufacturing  business,  may  be  formed  within 
this  State  by  two  or  more  persons,  who  are  known  and  called 


.S72 


Washinc/ion. 


[Part  J.-) 


i 

I 


,i,'eneral  paitncrs,  and  are  generally  and  jcnntly  liable  as  genei al 
partners;  and  of  two  or  more  persons  who  shall  contribute  to 
the  eonnuon  stock  a  specific  sum  in  actual  money  as  capital, 
and  are  known  and  called  special  partners,  and  are  not  peison- 
ally  liable  for  any  del)ts  of  the  partnership,  except  as  hereafter 
stated.  The  persons  forming  such  partnership  shall  make  and 
severally  subscribe  in  duplicate  a  certificate,  and  each  partner 
shall  acknowledge  the  same,  and  file  one  with  the  County 
Auditor,  so  subscribed  and  acknowledged.  Such  certificate 
must  contain  the  name  of  the  partnership,  and  under  which  its 
business  is  to  be  conducted,  names  and  residences  of  all  gene)'!il 
and  special  partnei's,  amount  of  capital  which  each  special 
])artner  has  contributed  to  the  common  stock,  the  general  nature 
of  the  business  to  be  transacted,  time  of  commencement  and 
termination  thereof.  Cannot  commence  before  tiling  certificate: 
if  false  statement  is  made,  all  subscribing  partners  become 
liable  as  general  partners.  Partners  must  publi.sh  in  weekly 
newspaper  in  county  for  four  consecutive  weeks,  a  copy  of 
certificate  of  partnership,  and  until  published  for  the  full  time, 
partnership  considered  general. 

The  business  may  be  conducted  in  name  of  general  partners, 
witliout  the  word  company  or  any  other  general  term.  A 
.special  partner  is  liable  as  a  general  partner  if  his  name  is  used, 
or  if  he  personally  makes  any  contract  respecting  the  concerns 
of  the  partnership  with  persons  except  general  partners ;  unless 
he  acted  and  was  recognized  as  a  special  partner  only.  No 
part  of  the  capital  stock  shall  be  withdrawn,  nor  .shall  it  be 
reduced  below  the  sum  mentioned  in  the  certificate  of  partner- 
ship. If  during  the  continuance,  or  at  the  termination,  the 
assets  are  not  sufficient  to  satisfy  partnership  debts,  then  the 
special  partners  are  liable  for  all  sums  by  them  received  or 
withdrawn  from  the  capital  stock. 

Limited  partnership  shall  not  be  dissolved  before  the  time 
specified  in  the  cei'tificate  of  partnership,  unless  a  notice  of 
such  dissolution  subscriV)ed  l^y  all  the  partners  is  filed,  and  a 
copy  of  .such  notice  is  publi.shed  in  the  manner  prescribed  for 
the  publication  of  the  certificate  of  partnership. 


Chap.  '2-1]  Washington.     '  a?:} 

CHAPTER  XXII. 
MARRIED  PERSONS. 

.Married  persons  have  the  same  riglit  and  liberty  to  acquire, 
hi)ld,  enjoy,  and  dispose  of  every  species  of  property,  and  to 
sue  and  be  sued,  as  if  they  were  unmarried. 

All  laws  which  impose  or  recognize  civil  di.sabilities  upon  a 
wife,  which  are  not  imposed  or  recognized  as  existing  against 
the  husband,  are  abolished. 

A  wife  may  receive,  maintain  an  action  for,  and  hold  in 
her  own  right,  the  wages  of  her  personal  labor.  Neither  hus- 
ban<l  or  wife  is  liable  for  the  debts  or  liabilities  of  the  other 
incurred  before  marriage,  nor  for  the  separate  debts  of  each 
other. 

The  expenses  of  the  family  and  the  education  of  children 
are  chargeable  upon  the  property  of  both  husband  and  wife, 
anil  in  relation  thereto  they  may  be  sued  jointly  or  separatel}'. 
Property  accjuired  by  a  married  person  before  his  or  her 
marriage,  or  afterward  acquired  by  gift,  devise  or  inlieritance, 
is  his  or  her  separate  property,  and  not  subject  to  the  debts  of 
the  other.  Property  not  so  acquired  during  marriage  is  com- 
munity propert}'.  The  husband  shall  have  the  management 
and  control  of  connnunity  personal  property,  with  like  power 
of  disposition  as  of  his  separate  personal  property.  The  wife 
nuist  join  in  the  disposition  of  comnuinity  property.  A  hus- 
band may  give,  grant,  sell  or  convey  directly  to  his  wife, 
and  a  wife  give,  grant,  sell  and  convey  directly  to  her  hus- 
liand,  his  or  her  estate  in  the  community  real  property.  But 
those  conveyances  shall  not  att'ect  any  existing  equity  in  favor 
of  a  creditor  of  the  grantor  at  the  time  of  such  transfer.  Either 
may  authorize  the  other  by  power  of  attorney  to  sell  or  other- 
wise dispose  of  his  or  her  community'  property,  or  they  may 
jointly  empower  third  persons  to  sell. 

Section  2410  of  the  Code  provides:  That  the  husband  has 
the  control  and  management  of  the  community  real  property, 
but  lie  has  not  tlie  power  to  sell,  encumber,  lease,  or  in  any 


:}74 


Washington. 


[Pnrt  l.-) 


othor  way  to  disposo  of  the  saint*,  iinloss  the  wlt'o  join  in  tin* 
written  instrument  croatinf,'  an  incumbrance,  lease,  or  join  in 
the  deed. 

Connuunity  real  pro])ei'ty  shall  be  held  for  community 
debts,  and  also  for  labor  and  materials  furnished  in  ereetiiiLr 
improvements  thereon. 

CHAPTER  XXIII. 


CORPORATIONS. 

Corporations  for  manufacturino;,  mining,  milling,  wharfing 
and  docking,  mechanical,  mercantile,  banking,  iniprovemmt 
and  building  purposes,  or  for  the  buiMing.  e([uipping  an<l 
managing  water  flumes,  for  the  transportation  of  wood  and 
lumber,  or  for  building,  equipping  and  running  railroads,  or 
constructini'  canals,  or  engagino-  in  any  other  trade  or  business, 
may  be  formed.  No  corporation  shall  commence  business  (tr 
in.stitute  pi-oceedings  to  condenm  land  until  the  whole  amount 
of  its  capital  .stock  is  subscribed.     (Laws  1885-6.) 

Any  two  or  more  persons  desiring  to  form  corpcjrations, 
shall  make,  subscribe  and  acknowledge  articles  of  incorporatii)n 
in  triplicate,  and  file  one  in  the  office  of  the  Secretary  of  State, 
one  in  the  office  of  the  county  Auditor  where  principal  place  of 
business  is  located,  and  retain  the  third.  Said  articles  shall 
state  the  corporate  name,  the  object  for  which  it  is  formeil,  the 
amount  of  its  capital  stock,  the  time  of  its  existence,  not  to 
exceed  fifty  years,  the  number  of  shares,  the  number  of  trustet's 
and  their  names,  and  the  principal  place  of  business  of  the 
company.  There  shall  be  a  board  of  not  less  than  two  trustees, 
stockholders  of  the  company,  and  a  majority  of  them  citizens 
of  the  United  States,  and  residents  of  the  State.  Stock  shall 
be  deemed  personal  estate,  and  no  ti'ansfer  shall  be  valid  except 
between  the  parties  thereto,  unless  the  .same  has  been  enterc^d 
in  the  books  of  the  company. 

The  amount  of  capital  stock  of  any  incorporated  bank  shull 
be  less  than  twenty-five  thousand    dollars,  to   be  divided   in 


C;iini).  21)] 


WASHINfintN. 


:<7.- 


. 


sluir(!s  of  oiif  1miih1i'(!(1  (lollavs  cacli,  all  of  wliicli  shall  lie 
suhscrilRMJ,  ami  tliVL't'-tifths  slmll  lu;  paid  in  before  the  eom- 
nienc(!inent  of  Im.sinesH. 

No  corporation  shall  issue  or  put  in  circulation  as  money 
anythin<^'  but  the  lawful  m  )ney  of  the  United  States,  ((.'oust. 
Art.  XII,  Sec.  11.) 

Kach  stockholder  of  any  bankinif  or  insurance  corporation 
shall  be  individually  and  personally  lial)le,  e(|ually  and  ratably, 
and  not  one  for  another,  for  all  contracts,  debts  and  en<;age- 
nicnts  of  .such  corporation  accruing  while  they  remain  sueh 
stockholders,  to  the  amount  of  the  par  value  of  their  stov'k 
therein,  in  acMition  to  the  amount  in\i'sted  in  such  shari's- 
(Const  Art.  XII,  Sec.  11.) 

In  all  other  incorporated  companies,  stockholders  arvj  liable 
for  the  debt  of  the  company  to  the  amount  of  their  unpaid 
capital  stock.     (Const.  Art.  XII,  Sec.  4.) 

Foreign  Corporations. 

No  corporation  or<^anized  outside  the  limits  of  this  State 
shall  be  avowed  to  transact  business  witlun  the  State  07i  niure 
favorable  conditions  than  are  prescribed  by  law  to  similar 
corporations  organized  under  the  laws  of  this  State.  (Const. 
Art.  XII,  Sec.  7.) 

Any  foreign  corporation  may  acquire,  hold,  use  and  dispose 
of,  in  the  corporate  name,  all  real  estate  necessary  or  con- 
venient to  carry  into  effect  the  objects  of  its  incorporation, 
and  the  transaction  of  its  business,  not  to  exceed  oOOO  acres  of 
land,  and  also  any  interest  in  real  estate,  by  mortgage  ov 
otherwise,  as  security  for  moneys  due  to.  or  loans  made 
by  such  foreign  corporation  in  this  State;  provided,  that  no 
foreign  corporation  hereafter  oi'ganized  for  the  purpose  of 
dealing  in  real  estate,  by  buying  and  selling  the  same,  as  a 
])art  of  its  business,  shall  be  permitted  to  transact  business  in 
this  State;  provided,  further,  such  corporation  shall  file  and 
i-ecord  in  the  office  of  the  Secretary  of  State,  a  certified  copy 
of  its  charter  or  articles  of  incorporation.  If  such  corpor.ation 
should  desire  to  carry  on  business  in  more  than  one  place  in 


i 


376 


Washington. 


[Part  15 


this  State  at  oiv  and  the  same  time,  tlien  such  corporation  shall 
constitute  and  appoint  an  agent  to  reside  at  the  principal  place 
of  business  of  such  corporation,  and  shall  duly  authorize  him 
to  accept  service  of  process  in  any  suit  or  action  pertaining  to 
the  property,  business  or  transactions  of  such  corporation  in 
this  State.  Such  appc^intments  must  be  tiled  with  the  Secre- 
tary of  State. 


CHAPTER  XXIV. 

CHATTEL  MORTGAGES. 

Mortgages  may  be  made  upon  all  kinds  of  personal  prop- 
erty, upon  the  rolling  stock  of  a  railroad  company,  upon 
all  kinds  of  machinery,  upon  boats  and  vessels,  on  growing 
crops,  and  on  portable  mills  and  like  property.  Chattel  mort- 
gages are  vuid  against  creditors  and  subsequent  purchasers  and 
incumbrancers  for  value  and  in  good  faith,  unless  it  is  accom- 
panied by  the  affidavit  of  the  mortgagor  that  it  is  made  in 
good  faith,  without  any  design  to  hinder,  delay  or  defraud 
creilitors,  and  it  is  acknowledged  and  recorded  in  the  same  man- 
ner as  real  estate  conveyances  It  must  be  recorded  in  the 
office  of  the  County  Auditor  in  which  the  mortgaged  property 
is  situated 

If  mortgaged  property  is  removed  from  the  county  in 
whicli  it  is  situated,  it  is,  except  as  between  the  parties,  exempt 
from  the  operation  thereof,  unless  the  mortgagee,  within  thirty 
days  after  such  removal,  causes  the  mortgage  to  be  recorded  in 
the  county  tu  which  the  property  has  been  removed;  or  it  is 
rec(jrded  in  the  custom  house;  or  the  mortgagee  take  possession 
within  thirty  days  from  such  removal.  A  mortgage  of  a  ves- 
sel over  twenty  tons  burden  .shall  be  recorded  in  the  office  of 
the  Collector  of  Customs  where  such  ves.sel  is  registered,  en- 
rolled or  licensed.  A  mortgagor  removing  mortgaged  property 
from  the  county  where  it  is  situated  at  the  date  of  mortgage 
before  it  is  released,  or   without  the  written   consent  of  the 


Chap.  24] 


Washington. 


877 


mortgagee,  or  shall  dispose  of  or  secrete  the  same,  is  guiltj'  of 
a  misdemeanor,  and  shall  be  imprisoned  in  the  county  jail  not 
exceeding  three  years. 

Mortgages  of  personal  propei'ty,  when  the  debt  is  due,  may 
be  foreclosed  by  notice  and  sale,  or  by  action  in  the  Superior 
Court.  A  mortgagee  may  take  possession  of  the  mortgaged 
property  when  the  debt  has  become  due ;  or  when  not  due  and 
the  mortgagee  has  reasonable  ground  to  believe  the  debt  is  in- 
secure, and  sell  the  same  after  giving  notice. 


CHAPTER  XXV. 

INTEREST. 

The  legal  rate  of  interest  is  ten  per  cent,  per  annum  in  the 
absence  of  any  contract  in  writing  fixing  a  different  rate. 
Parties  may  conti-act  in  writing  for  any  rate  of  interest  that 
they  may  agree  upon. 


CHAPTER  XXVI. 
BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 

(^*u  all  bills  of  exchange,  promissory  notes,  orders  and  drafts 
payable  at  a  fufcur^;  day  certain,  three  days'  grace  shall  be 
allovved,  urdess  otherwise  expressly  '-Ipulated.  The  fourth 
day  of  July  anil  the  twenty-tifth  day  of  December,  shall,  for 
the  ])urpose  of  prijsentment  and  acceptance,  and  of  protesting 
and  giving  notice  of  dishonor  of  bills  of  exchange,  promi,s,sory 
notfcs,  drafts  and  checks,  be  treated  as  Sunday. 

An  acceptance  must  be  in  writing,  signed  by  the  acceptor, 
or  his  lawful  agent.  If  the  acceptance  is  written  on  a  paper 
other  tiiaii  the  bill,  it  .shall  not  bintl  the  acceptor,  except  in 
favor  of  an  inm)cent  holder  of  such  paper  for  valuable  consid- 
eration. 

An  unconditional  promise  in  writing  to  accept  a  bill  before 


.37S 


Washington. 


[Part  15 


it  is  drawn,  shall  be  deemed  an  acceptance,  in  favor  of  e^ery 
person,  who,  upon  the  faith  thereof  received  the  bill  for  valu- 
able consideration.  A  refusal  to  write  the  acceptance  on  the 
bill  is  a  refusal  to  accept,  and  the  bill  may  be  protested  for 
non-acceptance. 

If  a  bill  is  delivered  to  a  drawee  for  acceptance,  and  he  de- 
stroys the  same,  or  refuses  to  accept  \\'ithin  twenty-four  liours 
after  delivery,  shall  be  deemed  to  have  accepted. 

The  rate  of  damages  for  protest  of  bills  of  exchange  for 
non-payment,  drawn  or  endoi-sed  in  this  State,  payable  without 
the  limits  of  the  United  States,  is  ten  per  cent.,  if  out  of  the 
State  but  within  the  United  States,  five  p^r  cent. 

TAXES. 

Household  furniture  to  the  value  of  two  hundred  dollars 
for  each  familj'^;  all  wearinjnr  apparel  in  actual  use,  and  ft>od, 
not  to  exceed  one  year's  supply,  is  exempt.  Personal  prope  ^y, 
which  has  been  consigned  from  any  place  out  of  tlu^  State,  tr> 
be  .sold  in  the  State,  is  subject  to  taxation.  Taxes  are  delin- 
quent on  the  first  day  of  March  in  each  year,  after  which  the 
Sheriff  shall  collect  all  delinquent  taxes,  with  the  per  cent, 
penalty,  and  interest  at  the  rate  of  ten  per  cent,  until  paid. 
Tax  sales  commence  on  the  first  Monday  in  August  of  each 
year;  the  Sheriff  must  give  notice  by  publication  for  three 
consecutive  weeks,  or  by  posting  printed  notices.  Lands  sold 
for  taxes  may  be  redeemed  by  former  owner,  mortgagor,  execu- 
tion or  attaching  creditors,  witlun  three  years,  on  paynient  of 
delinquent  taxes,  with  interest  at  twenty  per  cent,  per  annunii 
and  costs,  eharges,  and  accruing  taxes. 


CHAPTER  XXVII. 

INSOLVENT  LAWS. 

Every  insolvent  debter  may  Ite  discharged  from  his  debts 
on  executing  an  assignment  of  all  his  property,  real,  personal 
or  mixed,  for  the  benefit  of  all  his  creditors,  in  compliar.ee  witli 


Part  XV.— Washington. 


INSOLVENT  DEBTORS  — LAWS  1890. 

SYNOPSIS. 

No  {general  assignment  of  property  by  an  insolvent,  or  in 
contemplation  of  insolvency,  for  the  benefit  of  creditors,  shall 
be  valid  unless  it  be  made  for  the  benefit  of  all  his  creditors 
in  proportion  to  the  amount  of  their  respective  claims.  And 
such  assignment  shall  have  the  effect  to  dischar"e  anv  and  all 
attachments  on  which  judgments  have  not  been  taken  at  tiie 
date  of  such  assignment;  and  after  the  payment  of  costs  and 
disbursements  thereof,  including  the  attorneys'  fees  allowed  by 
law  in  case  of  judgment  out  of  the  estate  of  the  insolvent, 
such  claim  or  claims  shall  be  deemed  as  presented,  and  shall 
pro  rata  with  other  claims. 

Every  assignment  shall  be  in  writing,  acknowledged  and 
recorded. 

Two  or  more  creditors  may,  within  thirty  days  fi-om  the 
making  or  recording  of  the  assignment,  through  the  Judge  of 
Superior  Court,  have  a  meetin"^  of  creaiiv,rs  called  to  choose  an 
assignee  in  lieu  of  the  f  ^signee  nameil  in  the  assignment. 
Such  creditors  may  appe>  r  in  person  or  by  proxy  with  verified 
claims,  and  a  majority  ir  niunber  anil  value  of  said  creditors 
attending  such  meeting  (Jiall  select  one  or  more  assignees. 

Assignee  shall  give  bonds.  ' 

Assignee  shall  give  notice  to  creditors  to  Hie  their  claims 
under  oath  within  three  months.  All  creditors  who  shall  not 
exhibit  their  claims  witliin  the  three  months  shall  not  partic- 
ipate in  the  dividends  until  aftei-  paynuuit  in  full  of  all  claims 
presented  within  the  three  months  and  allowed  by  the  Court. 

If  estate  realizes  fifty  per  cent,  net  of  allowed  claims,  and 
there  is  no  fraud  on  the  part  of  the  debtor,  he  shall  be  entitled 
to  a  discharge  from  his  debts. 

All  laws  in  conflict  with  this  are  repealed. 


Chap.  27] 


Washington. 


37!) 


■A 


the  provisions  of  the  Act  oi"  the  Legislative  Asseinl)ly,  approved 
January  81.  1(S(J7,  provided  said  assignment  "be  made  hoixt 
tide  and  withoiit  fraud." 

The  Superior  Court  lias  original  jurisdiction  in  matters  of 
insolvency.  The  insolvent  debtor  petitions  the  Judge  having 
original  jurisdiction  within  his  place  of  domicile  or  usual  resi- 
dence, briefly  .stating  the  causes  which  compel  him  to  surrender 
his  property  to  his  creditors,  and  prays  to  niake  a  cession  of 
his  estate  and  be  discharged  from  his  debts;  he  shall  annex  to 
said  petition  a  schedule  containing  a  summary  .statement  of 
his  aflFairs,  a  list  of  the  losses  he  may  have  sustained,  giving 
the  names  of  his  creditors,  if  known,  amount  due  to  each 
creditor,  the  cause  and  nature  of  such  indebtedness  and  when 
it  accrued,  and  a  statement  of  any  existing  judgment,  mortgage, 
collateral  or  other  securities  for  the  payment  of  any  .such  debt: 
it  shall  contain  a  full,  complete  and  perfect  inventory  of  all 
his  property,  real,  personal  and  mixed ;  of  all  chose.s  in  action; 
debts  due  and  to  become  due,  and  all  moneys  on  hand,  and  a 
full  statement  of  all  incumbrances  on  his  property.  He  .shall 
estimate  and  set  forth  in  said  schedule  his  property  at  its  cash 
value. 

He  shall  subscribe  and  swear  to  the  schedule.  (The  form 
of  the  oath  is  given  in  the  statute,  and  it  is  exceedingly  strong 
and  forcible.) 

The  Judge  then  makes  an  order  requiring  all  the  creditors 
to  show  cause  why  an  assignment  should  not  be  made,  and  the 
insolvent  discharged  from  his  debts. 

The  homestead,  if  any,  and  property  exempt  from  execution, 
shall  be  set  forth,  included  in  the  schedule,  but  it  is  the  dutj- 
of  the  Judge  to  set  it  apart  for  the  use  and  benefit  of  the  in- 
solvent. The  insolvent  .shall,  on  or  before  the  day  appointed 
for  the  meeting  of  his  ci'editors,  deliver  to  the  Court  all  his 
books  of  account,  and  vouchers,  notes,  bonds,  bills,  securities,  or 
other  evidences  of  debt,  bearing  on  the  property  surrendered, 
and  they  .shall  be  filed  and  ultimately  delivered  to  the  assignee 
who  may  be  appointed. 

A  notice  is  published  by  the  Clerk  of  the  Court  directing 


380 


Washtn(jtox. 


[Part  15 


the  creditors  to  appear  before  the  Judge  at  chambers  or  in  open 
Court  within  80  days  from  the  date  of  publication,  to  show 
cause  why  tlie  petition  should  not  be  granted;  meantime  all 
proceedings  against  the  insolvent  are  stayed,  which  does  not, 
however,  pi-event  the  appointment  of  a  receiver  by  the  Judge 
to  take  possession  of  all  the  insolvent's  property;  provided,  one 
or  more  of  his  ci'editors  shall  show  cause  therefor  by  prelimin- 
ary affidavit,  and  satisfactory  proof  of  the  facts  on  which  it  is 
founded. 

At  the  creditors' meeting  they  first  certify  "on  oath  that 
their  respective  claims  are  legitimate  and  true,"  and  then  ap- 
point one  or  more  assignees,  not  exceeding  three.  In  appoint- 
ing assignees,  "the  opinion  of  the  majority  of  said  creditors,  in 
sums  or  in  claims,  shall  prevail,"  and  any  creditor  may  be  rep- 
resented by  his  "duly  authorized  agent  or  attorney." 

When  the  assignee  or  assignees  have  been  appointed,  and 
the  surrender  of  the  property  accepted  of,  the  assignees  file  in 
the  Clerk's  office  "a  certified  statement  of  the  deliberations  of 
said  creditors  on  the  appointment  of  said  assignees,"  and  they 
shall  give  bond  in  sucli  sum  as  the  majority  of  the  creditors 
may  have  determined;  or  if  they  have  not  fixed  on  any 
amount,  the  Judge  .shall  determine  it. 

The  insolvent's  property  is  sold  at  public  auction  by  ths.' 
assignees,  on  twenty  days'  notice  by  publication  in  a  news- 
paper of  the  count}',  or  if  none,  in  the  one  nearest  thereto. 
Perishable  property  may  be  sold  on  five  days'  notice. 

The  assignees  (if  more  than  one)  shall  deposit  all  funds 
"beloni'ini''  to  the  failure '  in  their  joint  names,  and  they  shall 
never  be  used,  loaned,  or  mixed  with  the  per.sonal  affairs  of  the 
assijLcnees,  and  are  distributed  accordina-  to  the  directions  of 
the  Court:  they  may  sue  or  be  sued  in  respect  to  the  insolvent 
or  his  creilitors,  and  all  suits  against  the  insolvent  shall  be 
transferred  to  the  Court  having  jurisdicticm  of  the  insolvency. 

Whenever  a  dividend  shall  be  declared  the  assignee  shall 
make  out  a  statement  eontainin<f  the  names  of  the  several 
creditors,  the  amounts  due  them,  and  pro  rata  .sums  to  be 
«livided  among  all  creditors.     Any  creditor  may  make  a  motion, 


C'liap.  27] 


Washington. 


:isl 


. 


at  any  tinu',  to  know  it"  tlieassionees  liave  funds  in  tlit-ii'  liands. 
and  they  sliall,  it"  they  have,  be  conipelhjd  to  present  tlieii-  uo- 
counts  and  make  distribution;  or,  it"  they  neglect  to  do  so,  shall 
lie  removed  by  the  Judge  or  Court,  and  others  may  be  appoint- 
ed by  said  Judge  or  Court.  In  that  event  tlie  former  assignees 
forfeit  all  claim  to  any  commission,  and  pay  twenty  per  cent, 
in  addition  to  the  amount  of  funds  in  their  hands  as  a  penalty. 

If  at  time  for  meeting  of  creditors  they  do  not  attend,  or 
refuse  to  appoint  an  assignee,  the  Court  may  appoint  the 
Sheriff  of  the  county  to  receive  the  surrender  of  the  property. 

The  assignees  collectively  receive  ten  per  cent,  on  a  sum 
not  exceeding  $10,000;  eight  per  cent,  on  sums  above  !j>l 0,000, 
and  not  exceeding $30,000;  six  percent,  on  sums  above  .S30,00(). 
and  not  exceeding  $60,000;  and  four  per  cent,  on  sums  exceed- 
ing §60,000.  Such  commissions  shall  be  allowed  on  such  sums 
as  come  actually  in  their  hands,  or  are  distributed  bv  them. 

If,  after  the  appointment  of  assignees,  any  one  of  the  cred- 
itors deems  it  necessary  to  oppose  the  assignment  on  account 
of  fraud  of  the  insolvent,  or  the  assignnient  not  having  been 
legally  made,  he  shall,  within  ten  days  aftei-  the  appointment, 
lay  before  the  Judge  or  Court  his  written  opposition,  specify- 
ing the  facts  on  which  it  is  based,  and  in  case  of  fraud,  a  trial 
is  hail  before  a  jury  of  six  men,  at  which  the  objecting  creditor 
"shall  have  the  right  to  interrogate  the  insolvent  debtor  on 
"oath,  and  put  to  him  such  written  questions  as  to  the  state  of 
"his  affairs,  and  the  several  transactions  in  which  he  may  havr 
"been  engaged  anterior  to  his  failui'e,  as  he  shall  think  proper, 
"and  the  insolvent  shall  answer  in  writing  the  said  interroga- 
"tories  in  a  pertinent  and  distinct  manner,  and  every  equivocal 
"answer  on  his  part  shall  be  construed  against  him.'  If  the 
jury  find  the  insolvent  guilty  of  fraud,  he  shall  forever  be  de- 
barred fr!   n  the  benefit  of  tlie  insolvent  laws. 

All  persons  shall  be  considered  as  "  fraudulent  bankrupts" 
who  shall  be  convicted  of  having  concealed  their  property  with 
the  intention  to  keep  it  from  their  creditors;  or  of  liaving  con- 
cealed or  altered  their  books  or  papers  with  like  intention; 
or    of    having  passed   sham    deeds    with    intent    to    deprive 


382 


Washington. 


[Part  1.") 


tliL'ir  ereclitois  of  the  whole  or  any  part  of  their  prop- 
erty; (jr  of  intentionally  omitting  any  of  his  property  from  his 
scliedule;  or  of  having  purloined  his  books  or  any  of  them; 
or  of  having  altered,  changed,  or  made  them  anew  with  intent 
to  defraud  his  creditors;  or  of  having  fraudulently  alienated, 
mortgaged,  or  pledged  any  of  his  property;  or  of  having "com- 
"mitted  any  othei*  kind  of  fraud  to  the  prejudice  of  his  credi- 
"tors." 

The  insolvent  shall  be  debarred  from  the  privileges  of  the 
act,  if  he  sliall  be  convicterl  of  having  at  any  time  within  three 
months  preceeding  his  failure,  "fraudulently  sold,  engaged  or 
"mortgaged  anj'  of  his  goods  or  effects,  or  of  having  otherwise 
"assigned,  transferred,  or  disposed  of  the  same,  or  any  part 
"thereof,  or  confessed  judgment  in  order  to  give  a  preference  to 
"one  or  more  of  his  creditors  over  others  "  (whereby  to  receive 
aiiv  advantages  in  anticipation  of  his  failure)  to  the  prejudice 
of  his  creditors. 

All  debtors  insolvent  accountable  for  public  funds,  all 
"unfaithful  depositeries,"  all  who  refuse  or  neglect  to  pay  all 
funds  received  b}'  them  as  bankers,  brokers,  commission 
merchants,  or  in  any  fiduciary  capacity,  are  denied  the  benefits 
of  the  Act. 

The  insolvent  must  give  a  just  and  true  account  of  property 
sold  or  transferred,  and  money  collected  after  presentation  of 
his  petition,  and  pay  the  same  over  to  the  assignees  within  ten 
days  after  their  appointr^ent  and  demand  made  by  them, 
otherwise  said  debtor  shall  not  receive  the  benefit  of  the 
insolvent  law. 

If,  after  the  insolvent  has  had  the  benefit  of  the  Act,  it  be 
made  thereafter  to  appear  that  he  has  concealed  any  part  of 
his  property  or  estate,  or  given  a  false  schedule,  or  committed 
any  fraud  under  the  provisions  of  the  Act,  he  forfeits  all  its 
benefits,  and  cannot  "avail  himself  of  any  of  its  provisions  in 
"bar  to  any  claim  that  may  be  instituted  against  him." 

After  the  surrender  of  the  property  of  the  insolvent  it  vests 
in  the  assignees. 

The   insolvent    must   surrender   to   the   assignees   all   the 


Chap.  27] 


Wi^SHINGTON. 


UK] 


prupiiity  contairitjcl  in  his  scliodule;  if  not,  tlie  Jiulge  shall  oicU-r 
tin;  sheriti'  to  take  the  propertj'  and  deliver  it  to  the  assignees, 
or  may  imprison  the  insolvent  till  lie  surrenders  it. 

The  assignees  shall  make  out  and  v(,'rifv  an  account  of  their 
disbursements,  which,  if  approved,  the;  Judge  shall  certify,  and 
allow  the  amount  tliereof  out  of  the  insolvent's  property. 

A  member  of  a  firm  may  make  an  assignment  of  co-part- 
nership property  with  the  consent  in  writing  of  the  otlier 
members:  when  all  join  they  may  include  in  the  assignment 
all  their  individual  as  well  as  partnership  property,  and 
may  be  discharged  from  both  classes  of  debts  in  the  same 
proceeding,  but  partnershij)  property  shall  be  applied  to 
])artncrship  debts,  and  individual  property  to  individual  debts. 
No  assignment  shall  Ix-  legal  or  binding  upon  creditors  other 
than  provided  as  above. 

In  ease  the  insolvent  debtor  has  no  property  to  surrender, 
or  the  appraised  value  of  the  property  mentioned  in  his 
schedule  does  not  exceed  (Jiie-third  of  his  debts  then  e.\istin<r 
and  contracted  during  the  year  next  j^receding,  he  shall  not 
have  the  benefit  of  tin.'  insolvent  law,  unless  it  be  proven  b}" 
atfidavit  of  two  credible  and  disinterested  witnesses,  that  the 
<lebtor,  in  their  opinion,  has  really  experienced  the  losses  liy 
him  stated,  and  that  the  said  losses  have  reduced  him  to  the 
position  in  which  he  finds  himself. 

All  legal  mortgages  and  bona  fide  liens  existing  on  the 
property  at  the  time  the  surrender  is  made  shall  remain  good 
and  valid. 


CHAPTER  XXVIII. 

ALIENS. 

Aliens  cannot  hold  lands  in  this  State,  unless  they  have  in 
good  faith  declared  their  intention  to  become  citizens  of  the 
United  States,  except  where  acquired  by  inheritance,  under 
mortgage,  or  in  good  faith  in  the  ordinary  course  of  justice  in 


884 


Washington. 


[Part 


15 


the  collection  of  debts.  But  it  shall  not  apply  t«  lands  con- 
tainin-  valuable  deposits  of  minerals,  metals,  iron,  coal  or  hre- 
clay  and  tho  necessary  land  for  mills  and  machinery  to  operate 
them.  A  corporation  is  an  alien  under  this  section,  if  the  ma- 
jority of  the  capital  stock  is  owned  by  aliens.  (Const.  Art.  11 
Sec.  33.) 


I  NDEX. 


ARIZONA. 


Part  IX. 

Acknowledgments '295 

Affidavits 293 

Answer — Time  Allowed 280 

Assignments 300 

Attachments 28(5 

Banicriiptcy 299 

Bills  of  Exchange 298 

{'hattel  Mortgages 297 

Commencement  of  Suits 280 

Courts 277 

'      Terms  of 279 

"     Their  .Jurisdiction 277 

"      Where  Held 279 

Deceased  Persons — Estates  of 291 

Depositions 293 

Estates  of  Deceased  Persons 291 

Examination  of  Judgment  Debtor 291 

Executions 290 

Exemption  from  Execution 290 

Garnishment 288 

Insolvency 299 

Interest 297 

Judgments 289 

Judgment  Liens 289 

Jurisdiction  of  Courts 277 

Leins  of  Judgments 289 

Limitation  of  Actions 284 

Married  Women 296 

Mortgages  of  Personal  Property 297 

Places  of  Trial  of  Civil  Actions 281 

Proceedings  Supplementary  to  Execution 291 

Promissory  Notes — Days  of  Grace 298 


I 


3«() 


Index. 


I'AilK. 

Kedeiiiption '2'M 

Sale — Under  Execution 200 

Terms  of  Courts 27!) 

Time  Allowed  to  Answer 280 

Trial— Place  of 281 


^ 


PACIFIC  COAST  ATTORNEYS  AND  A  NOTARY 
PUBLIC  FOR  SAN  FRANCISCO. 

Part  I. 

Aliwkii XXII 

Arizcmii XXI 

British  Columbia XXII 

California XIII 

Colorado XX 11 

Idaho XXI 

Montana XX 

Nevada XVII 

New  Mexico XXIl 

Oregon XVIII 

Texas XXII 

Utah XIX 

Wash  i  ngton XIX 

Wyoming XXI 


BRITISH  COLUMBIA 
Part  XI. 

Acknowledgments 327 

Affidavits 32t) 

Aliens 329 

Bp{)eals 325 

Arrest  in  Civil  Actions 323 

Attaeliments 323 

Bankruptcy 330 

Chattel  Mortgages 32S 

Commencement  of  Suits 322 

Commercial  Traveler's  License 330 

Courts 321 

"      Terms  of 321 

"      Their  Jurisdiction 321 

Deceased  Persons — I'^ta tes  of 32') 


Index. 


387 


Paiik. 

Depositions ;<2(> 

I«]Htates  of  Deceaset!  Person ,'{2') 

Kxecutions 324 

Kxeniittions  from  Execntion 324 

HomeHtead ;i2il 

insolvency 330 

Interest 32S 

Joint  Stocli  Conipanies 327 

JndgnientH 324 

.1  ndgnien t  Liens 324 

Judicial  Records 327 

Jurisdiction  of  Conrtt; 321 

Land  Laws 32'.) 

License  Law 330 

Liens 321) 

Liens  of  Jndgnients 324 

Limited  Partnerships 327 

Limitation  of  Actions 323 

Married  Women 327 

Mines 331 

Mortgages 328 

Mortgages  of  Land 328 

Mniiicipal  Law 330 

Naturalization 329 

Partnerships — Limited 327 

Pleadings 322 

Redemption 324 

Sale — I'nder  Execution 324 

Ships  and  Shipping 330 

Security  for  Costs 32o 

Terms  of  Courts 321 

Time  for  Api>earance 322 

Usnrv 1^28 


CALIFORNIA. 
Part  III. 

Acknowledgments 81> 

Acknowledgments — Forms  of. 91 

Affidavits 80 

Agent  and  Principal 117 

Answer — Time  Allowed -" 

Answer — Time  Allowed  in  Justices'  Court 21 

Appeals  in  General •">'> 


^ 


388 


Index. 


Appeals  from  Superior  t^urts 

Appeals  from  Justices'  or  Police  Courts 

Arbitrations 

Arrest  and  Bail 

Assignments — For  Benefit  of  Creditors 

Assignment  without  Predjudice  to  Set-offor  defense. 

.Attachments 

Bail — see  Arrest  and  Bail 

Bankruptcy 

Bills  of  Exciiange — see  Negotiable  Instruments 

Bills  of  Lading 

Certificate  of  Sale  of  Real  Estate 

( 'hattel  Mortgages 

Claim  and  Delivery  of  Personal  Property 

Cor.ipron.ise — Proceedings  on  Ofler  of  Defendant.... 

Commencement  of  -Actions 

Commission  Merchants 

( 'ommon  ( 'arrier.^ 

Compensation  of  Executors  and  Administrators 

Confession  of  Judgments 

Contracts 

Corporations 

( 'osts 


PA(iK. 

..  58 

..  59 

..  82 

..  ?'.', 
119 

..  19 

..  28 

..  36 

..  124 

..  109 

..  99 

..  50 

..  101 

..  33 

..  42 

..  19 

..  124 

..  100 

..  G9 

..  40 

..  108 

,.  84 


Con  rts 

"     Their  Jurisdiction 

"     When  and  Whe.-e  Held 

Currency  Judgments 

Deceased  Persons — I^etatts  of 

Depositions 

Descents 

Estates  of  Deceased  Persons 

Examination  of  Judgment  Debtor 

Executions 

Executions — Proceedings  Supplementary  lo. 

Exemptions  from  Execution 

Form  of  Civil  Actions 

Fraudulent  Representations 

Fraudulent  Transfers 

(Jold  Coin  Judgments 

(iuaranty  and  Suretyship , 

1  loi  id  iiys —  1  ^egal 

1  li  iinesteads 

Injunctions ,. 

Insolvency 

Insolvency —  I  n  voluntary 


00 

") 
5 

n 

42 

62 

86 

70 

(52 

53 

46 

53 

47 

23 

118 

118 

42 

104 

150 

82 

38 

124 

127 


f 


Index. 


389 


f 


Insolvencv— Voluntary  _ 29^ 

Interest o() 

Joint  Debtors— Proceedings  Against 40 

Judgments .   00 

Judgments  after  Verdict 4] 

Judgments  by  Confession ^q 

Judgment  by  Default  in  Justices'  Court 44 

Judgments  in  Justices'  Courts 44 

Judgments  in  Justices'  Courts  otlier  than  by  Default 44 

Judgments  in  Eeplevin 4.. 

Judgment  Liens 43 

Judgment  Liens,  Justices'  Courts 4,5 

Judgment  on  Proceedings  without  Action 4] 

Judgment  on  Failure  to  Answer 39 

Judicial  Records gg 

Judicial  Records — How  I'roved g,S 

Jurisdiction  of  Courts -, 

Legal  Holidays ^r^Q 

Letters  of  ('red it Iq- 

Liens yq 

Liens  for  fjahiry  and  Wages 75) 

Liens  of  Mechanics  and  Others  upon  Real  Estate 7;i 

Limitation  of  Civil  Actions 1.-, 

Married  Women gj; 

Mechanics'  Liens 7;^ 

Minors ' (jy 

Mode  of  Taking  Testimony  of  Witnesses 8(! 

^fortgages  of  Personal  P.operty ]01 

Negotiable  LiHtrunsents IQ9 

Xew  Trials gj 

Parties  to  Suits y) 

Partnereliips 92 

Personal  Property— Mortgages  of loi 

Place  of  Trial,  Civil  Actions 12 

Pleadings 23 

Pleadings— Provisions  in  Justice's  Court 2(-> 

I^'edge lO;; 

Principal  and  Agent II7 

Proceedings  on  Ofler  of  Defendant  to  Compromise 42 

Proceedings  Sujjplementary  to  Execution ,j,'? 

Promissory  Notes— See  Negotiable  Instruments lOlt 

Publication — Service  by 20 

Kedempt  ion -,(j 

Replevin — See  Claim  and  Delivery 3;{ 

Replevin — Judgment  in 43 


I 


390 


Index. 


Page. 

Salaries — Liens  for 79 

Sale 107 

Sale  of  Real  Estate — when  Absolute  ornot oO 

Sale  of  Real  Estate — Certificate  of oO 

Sale  on  Execution -It) 

Sale— When  Fraudulent 118 

Security  for  Costs 55 

Service  for  Publication 20 

Sole  Traders 07 

Stoppage  in  Transit OS 

Submission  of  Controversy  without  Action 41 

Succession 70 

Summons — on  Whom  to  be  Served 20 

Summons — Service  by  Whom  Made  in  .Justices'  Courts 22 

Summons — Who  may  Serve 20 

Summons — Within  What  Time  to  Issue 20 

Suretyship 104 

Terms  of  Courts 1 1 

Circuit  Court  U.  S 12 

Superior  Courts 11 

District  Court  U.  S 12 

Justices'  Courts 11 

Supreme  Court 11 

Testimony  of  Witnes.ses  by  Affidavit 80 

Time  of  Holding  Courts 11 

Trial  of  Civil  .Actions — Where  to  be  Tried 12 

Verification  of  Pleadings 2(> 


COLORADO. 


Part  XII. 


Acknowledgraents 3H5 

Answer — Time  to 333 

A  tt ach  ments 333 

Hills  of  Exchange 335 

Courts — J 11  risdict ion 333 

Estates  of  Deceased  Persons 335 

Homesteads 334 

Interest 384 

I  nsol  vency ^"i' 

Limitation  of  Actions 3.''4 

Time  to  Answer .'-33 


I 


Index. 


891 


IDAHO. 


Part  VI. 

Vm:k 

Acknowledgments ." '23'.) 

Answer — Time  Allowed 214 

Appeals 222 

Arrest  in  Civil  Actions 218 

Attachments 217 

Bankruptcy 245 

Chattel  Mortgages 244 

Claim  and  Delivery 218 

Commencement  of  Actions 214 

Corporations 238 

Courts 203 

Courts — Terms  of 203 

( 'ourts — Their  Jurisdiction 203 

Deceased  Persons — Estates  of 228 

Depositions 241 

Descent 233 

Estates  of  Deceased  Persons 228 

Examination  of  Judgment  Debtor 221 

Executions 210 

'Exemptions  from  Execution 219 

H omesteads 237 

1  •'.solvency 245 

I   '<rest  and  Usury 245 

ii.Hgments 218-219 

.'iicment  Liens 218-219 

/'idi.'ial  Records 242 

'•..  .sdietiou  c"    ourts 203 

Liens 22G 

Liens  of  Judgments 219 

Limitations  of  Civil  Actions 205 

F-imited  Partnership '243 

Mortgages  o'  Personal  Property 244 

Partnerships — Limitetl — Special 243 

Parties  to  Civil  Actions 210 

Place  of  Trial  of  Civil  Actions 211 

Pleadings 217 

I :  )ceeding8  Kupplementary  to  Execution 221 

Kedemption 221 

Security  for  Costs 221 

Succession 233 

Summons 214 

Summons — Publ ication  of 21 6 


392 


Index. 


Paok. 

Summons  on  Whom  to  be  Served 215 

Terms  of  Courts 203 

Time  Allowed  to  Answer 214 

Trial— Place  of. 211 

Usury 24r) 


JURISDICTIO  ;   ^'   U.  S.  COURTS.     ' 
¥m     II. 

Courts ] 

Jurisdiction  of  Courts 1 

Removal  of  Suits  into  U.  S.  Courts 2 


MONTANA. 
•      .  Part  VIII. 

Acknowledgments 274 

Answer — Time  Allowed 2(J7 

Appeals 272 

Arrest  in  Civil  Actions , 269 

Attachments 269 

Bankruptcy 276 

Chattel  Mortgages 276 

Corporations 27o 

Courts 267 

"    Their  Jurisdiction 267 

Deceiised  Persons — Estates  of 272 

Depositions 27H 

Estates  of  Deceased  Persons 272 

Examination  of  Judgment  Debtor 272 

Executions 270 

Exemption  from  E.xecution 270 

Insolvency 276 

Interest 27f> 

Judgment  Liens 270 

Judicial  Records 274 

Jurisdiction  of  Courts 267 

Liens  of  Judgment 270 

Limitation  of  Actions 26.S 

Limited  Partnerships 274 

Married  Women 27") 

Partnerships — Limited 274 


1 


5*' 


i: 


Index. 


893 


Page- 

Place  ofTrial  of  Civil  Actions 268 

Proceedings  Supplementary  to  Execution 272 

Kedeniption 270 

Sale— Under  Execution 270 

Security  for  Costs 272 

Time  Allowed  to  Answer 267 

Trial,  Place  of 268 

Usury 276 


NEVADA. 


Part  IV. 


A  ckno  wledgments 1 68 

Affidavits — Before  Whom  to  be  Taken 161t 

Answer — Time  Allowed 1.5:5 

Appeals 161 

Arrest  in  C'vil  .Actions 156 

Attachments 156 

Bankruptcy 173 

Bills  of  Exchange 171 

Chattel  Mortgages 171 

■Courts 151 

"    Terms  of 151 

"     Their  Jurisdiction 151 

'Corporations 170 

Docca.sed  Persons — p^tates  of 162 

Depositions 164 

I  )e{K)sit  ions  Taken  Out  of  State 1 66 

Estates  of  Deceased  Pereons 162 

Examination  oi"  Judgment  Debtor 160 

Exemptions  from  Executions 158 

Executions 158 

I  lomesteads 1 63 

Insolvency 173 

Interest  and  Usurv 171 


Joint  Debtors— Release  of. 


i: 


Jurisdiction  of  Courts 151 

Judgments  anJ  Judgment  Liens 157 

J  ud  icial  Itecords— I  low  Proved 1 67 

Liens  of  Judgments 157 

Li  m  itation  of  Act  ions 1 53 

Limited  Partnerships 1 69 

Married  Women 170 


394 


Index. 


1'.     E, 

Mortgages  of  Personal  Property 171 

Mortgages  of  Real  Property 172 

Partnerships — Limited 169 

Place  of  Trial 153 

Proceedings  Supplementary  to  Execution 160 

Promissory  Notes 171 

Redemption 160 

Release  of  Joint  Debtors 172 

Sale  under  Execvition 160 

Security  for  Costs 160 

Terms  of  Courts 151 

Time  Allowed  to  Answer 153 

Trial— Place  of. 153 

Usury 171 

Witnesses 164 


NEW  MEXICO. 
Part  XIII. 

Acknowledgments 339 

Answer — Time  to 337 

Arrest  and  Imprisonment  for  Debt 338 

Assignment — Laws 340 

Attacliments 337 

Bills  of  E.xcliange 339 

Courts — Jurisdiction 337 

Estates  of  Decea.sed  Persons 339 

Exemptions 339 

Homesteads 338 

Interest 338 

Limitation  of  Actions 338 


OREGON. 

Part  V. 

Acknowledgments 193 

Actions — Commencement  of 180 

Actions— Place  of  Trial 181 

Answer— Within  What  Time 181 

Appeals 187 

Arrest  in  Civil  Actions 183 

Assignments — For  Benefit  of  Creditors 197 

Attachments 183 


< 


Index. 


895 


,. 


PA(iE. 

Chattel  Mortgages 196 

Commencement  of  Suits 180, 

Courts  and  their  Jurisdiction 177 

(kiurts — Terms  of 178 

Corporations 196 

Deceased  Persons — Estates  of 188 

Depositions 191 

Descent  of  Personal  Property 190 

Descent  of  Keal  Property 189' 

Dower 191 

Estates  of  Deceased  Persons 188 

Examination  of  Judgment  Debtor 186 

Executions 185 

Exemptions  from  Execution 185 

Homesteads 191 

Insolvency,  see  Assignments 197 

Interest 197 

.Uidgment  Liens 1 85 

Judicial  Records 19S 

.hirisdiction  of  Courts 177 

Liens  of  Judgments 1 85 

Limitation  of  Actions 181 

Limited  Partn erships 1 94 

Married  Women 195 

Mortgages  of  Personal  Property 196 

Partnerships — Limited 194 

Place  of  Trial  of  Civil  Actions 181 

Proceedings  Supplementary  to  Execution 186 

Redemption ^^'^ 

Sale — Under  Execution 185 

Security  for  Costs 18' 

Suits — Commencement  of 180 

Summons 1°" 

Terms  of  Courts 1"* 

Usurv l^*" 


TEXAS. 
Part  XIV. 

Acknowlalgments '^'*^ 

Answer — Time  to "^'*^ 

Arrest  and  Imprisonment  for  Debt 3"^2 

Assignment — Laws '^'** 

Attachments ^'*^ 


29Q 


Index. 


Paok. 
Bills  of  Exchange 343 

Courts — Jurisdiction 34I 

Estates  of  Deceased  Persons 343 

Homesteads 342 

Interest 342 

Insolvency 344 

Limitation  of  Actions 342 

Promissory  Notes 343 


UTAH. 


Part  X. 


Acknowledgments 315 

Answer — Time  Allowed 302 

Appeals 309 

Arrest  in  Civil  Actions 304 

Attachments 303 

Bankruptcy 320 

Chattel  Mortgages 318 

■Commencement  of  Suits 302 

Corporations 31,S 

Courts 301 

"    Place  of  Holding 302 

"    Terms  of 302 

"    Their  Jurisdiction 301 

Deceased  Persons — Estates  of 311 

Depositions 312 

Estates  of  Deceased  Persons 311 

Examination  of  Judgment  Debtor 308 

Executions 306 

Executions — Proceedings  in  Aid  of 308 

Exemptions 306 

Homesteads 312 

Insolvency 320 

Interest  and  Usury 320 

Judgments , 305 

Judgment  Liens 305 

Judicial  Records — How  Proved 314 

Jurisdiction  of  Courts 301 

Liens  of  Judgment 305 

Limitation  of  Actions 303 

Married  Women 317 

Mortgages  of  Personal  Property 318 


Index. 


397 


Partnerships 317 

Partners — How  may  be  Sued,  etc 317 

Partners — Liability  of  Private  Property  for  Firm  Debts o  1 7 

Partners — Assignment  and  Jiffect ;)17 

Proceedings  in  Aid  of  Executions 308 

Redemption 308 

Sale — Under  Execution 306 

Security  for  Costs 30& 

Terms  of  Courts 302 

Time  Allowed  to  Plead  or  Answer 302 

Usury 320 

WASHINGTON. 
Part  XV. 


Acknowledgments. 
Aliens 


369 

383 

Answer — Time  Allowed 348 

Appeals  and  Writs  of  Error 362. 

Arrest  in  Civil  Actions 355 

.Vttacliments 3o] 

I'.ankruptcy 378 

Bills  of  Exchange 377 

( 'battel  Mortgages 376 

( '( )mmcncement  of  Suits 348 

( 'onveyances 369 

( "orporations 374 

Courts 345 

"    Terms  of 347 

•   "    Their  Jurisdiction 345 

"     Where  Held 347 

Deceased  Pei"sons — P^states  of 363 

Depositions 367 

Estates  of  Deceased  Persons 363 

Examination  of  Judgment  Debtor 361 

Execution ^57 

Exemptions  from  Executions 357 

(iarnishments 354 

Homesteads ^(57 

Insolvency 378 

Interest 377 

Judgments 3oo 

Judgment  Liens 355 

Judicial  Kecords  of  Other  States— How  Proved 369 


398 


Index. 


Paub. 

Juriwliction  of  Courts ."4") 

Liens  of  Judgments S'y'i 

Liens  of  Mechanics  and  Others .'?ot) 

Limitation  of  Actions .'JoO 

Limited  Partnerships STl 

Married  Persons .S7H 

Mortgages  of  Personal  Property IJTfi 

Partnerships — Limited .'t71 

Place  of  Trial— Civil  Action ;?4'.i 

Proceedings  Supplementary  to  Execntion 3(>1 

Promissory  Notes 377 

Redemption .T)7 

Replevin 301 

Sale  Under  Execution 357 

Security  for  Costs 3t)2 

Terms  of  Courts 347 

Time  Allowed  to  Answer 34S 

Trial— Place  of 34H 

Wills 3t)() 

Writs  of  Error 3G:i 


P 
A 


WYOMING 


Part  VII. 

Acknowledgments 2(51 

Answer — Time  Allowed 2V2 

Appeals i)'.) 

Arrest  in  Civil  Actions 2.>") 

Assignments 2fi4 

Attachments '2'A 

Chattel  Mortgages 264 

Commencemer.t  of  Actions 2.")2 

Courts 251 

"    Terms  of  and  Where  Held 252 

"    Their  Jurisdicti(m 251 

Deceased  Persons — Estates  of 2(50 

Deposition 2(50 

Estates  of  Deceased  Persons 260 

Examination  of  Judgment  Debtor 25!) 

Executions 258 

J)xemi)tions  from  Execution 25S 

Interest 2(M 

Judgment  Liens 257 

Judicial  Records 26 1 


Index. 


399 


Paok. 

''ol 
Jurisdiction  of  Courts 

Liens  of  Judgments V'^ 

Limitations  of  Actions ' ' 

Limited  Partnerships "'^ 

Married  Women "  ' 

Mortgages  of  Personal  Property ^^^^^ 

Partnersliips— Limited ^^.[^ 

Place  of  Trial  of  Civil  Actions -|.'- 

Proceedings  in  Aid  of  Executions '^^ 

Kedeniption ",.^ 

Sale  Under  Execution ''.',. 

Security  for  Costs ,,.;, 

Terms  of  Courts ,'J'.|J 

Time  to  Answer ^l", 

Trial— Place  of ,,' " 

Usurv 


